V​ICARIOUS

LIABILITY

1 Introduction

The basic concept

Vicarious liability allows the law to hold employers (and others) liable for the delict of their employees
(and others). We apply the ordinary principles of delict to the conduct of the employees, and then
attribute the delict, if any, to the employer using the principles of vicarious liability. The result is that the
employer is strictly liable; we don’t require fault on his part. In fact, the employer is ​absolutely ​liable
because ​no ​delictual elements need be satisfied in respect of his conduct—all that is required is that the
course and scope requirement is satisfied (see below).

Technically vicarious liability creates joint liability: the employer is now liable, but the employee remains
liable in addition. This means that the claimant can claim from the either party, perhaps only claiming
from the employer if the employee is insolvent. But in practice claimants almost invariably ignore the
employee and sue the (typically wealthier) employer directly.

History

Vicarious liability is almost entirely English in origin, and thus our law in this area is very similar to the
position in England and in other Commonwealth jurisdictions. It was developed in England in the early
19​th ​century, making it fairly recent. Its development at that time has been attributed to the Industrial
Revolution, which created more employee-employer relationships and, through increased mechanization,
simply meant that there were more accidents.

Some scholars have tried to connect modern vicarious liability to the strict liability under Roman law of
stable- keepers, ship’s captains, etc. for damage to property in their care, but this is artificial and there is
simply no developmental connection between vicarious liability and the civil law tradition. Perhaps this
explains the resistance to vicarious liability of certain purist South African judges.

Theoretical justification

It is a fundamental legal principle that there is no liability without fault. Vicarious liability departs from this
principle, so it requires a good justification. Most proffered justifications aren’t quite adequate. In what
follows, some of the most common justifications are discussed:
 1. Employers are wealthier than their employees, so claimants need recourse against them in order
for
their claim to be meaningful.

There are a few reasons why this justification is pathetically

inadequate:
a. There are many reasons why harmed persons might find themselves unable to found a delict, and
the
law does not feel it necessary to ease their plight by introducing broader liability rules. b. It’s not
even true that an employer will necessarily be wealthier than its employees. c. This does not justify
the course and scope requirement: if the point is simply to ensure that claimants can be reimbursed,
why reimburse them only when the delict was committed within the course and scope of the
wrongdoer’s employment?
2. By imposing vicarious liability on employers, they are incentivized to do their best to avoid causing
harm in the course of doing business.

In short, then, the claim is that vicarious liability is justified because of its deterrent effect. This
justification does find a parallel in, for example, product liability: producers are held strictly liable for
damage caused by their goods. However, it should be subsumed in the following justification:

3. One ought to be responsible for all the risks created by one’s

undertakings.

This principle gives rise to the so-called ‘enterprise risk’ justification. There are two key reasons to
support this principle. Firstly, it simply accords with our sense of distributive justice: if you choose to start
an enterprise and take its profits, you should also bear its risks. And secondly, there is an economic or
policy reason: the person best placed to weigh up and insure against the risks of a given enterprise is the
person undertaking such enterprise. Both these rationales clearly require employers to bear liability for
the delicts of their employees.

Scott generally agrees with this justification, and notes that it is supported in various other jurisdictions.
However, she does raise some problems with it:
a. Vicarious liability applies not only to trading companies but also to the State and charity
organizations. We got this from English law, where it was a fundamental principle that the State
should be treated just like private enterprises. Scott says, however, that this equivalence is nowadays
rather dubious, and there should be completely separate rules for the State. We will discuss this
further below. b. This justification does not explain the course and scope requirement, because this
requirement narrows vicarious liability to exclude some delicts which were generated by the risks
 associated with one’s business enterprise. For example, if I start a crèche and one of the caregivers
molests a child, my enterprise definitely created that risk; but I will escape liability if I can show the
caregiver acted outside the course and scope of his employment. c. This justification does not
explain the fact that one does not bear liability for delicts committed by
independent contractors which one hires (see
below).​1

Requirements

A is vicariously liable if and only

if:
1. there is a delict which was committed by another person, B; 2. B stands in a
particular relationship to A (especially an employment relationship); 3. B committed
the delict while acting within the course and scope of his employment with A.

In the remainder of this section we will look in detail at the last two requirements in
turn.

2 The particular relationship requirement

1 ​
Could one not explain this by saying that an independent contractor is undertaking his own business enterprise—whose

services he happens
​ to be hiring out in this instance—and therefore he should be bearing the risks associated with that
enterprise? In other words, these are cases where two enterprises ‘overlap’, and it just happens that the vicarious liability is
attached in these cases to the subcontractor. So I would’ve said this isn’t a weakness of the enterprise risk justification but rather
an exhibition of its explanatory power.
The employment relationship

There is no doubt that an employment relationship is the primary form of relationship which may fulfil
​ 914 AD 382​. But how does one
requirement 2. This has been clear in our law since ​Mkhize v Martens 1
determine when an employment relationship exists?

o ​The control test

An important early case here is ​Colonial Mutual Life Assurance Society Ltd v MacDonald ​1931 AD
412​. The Court held that South Africa, like England, distinguishes employees from independent
contractors. (This is really the key distinction relevant to determining whether an employment relationship
exists; other than making this distinction, things are straightforward.) MacDonald had been travelling by
car with an insurance salesman supervised by the defendant company. The salesman crashed the car,
causing injury to MacDonald. He tried to sue the defendant company on the basis of vicarious liability.
Thus the issue was whether a travelling insurance salesman is an employee of his insurance company.
The Court applied the so-called ‘control test’, received from English law:

The true test by which to determine whether one person who renders service to another
does so as a contractor or not is to ascertain whether he renders the service in the
course of an independent occupation, representing the will of his employer only as to

​
the result of the work, and not as to the means by which it is accomplished. ... But while

it may sometimes be a matter of extreme delicacy to decide whether the control

reserved to the employer under the contract is of such a kind as to constitute the
employer the master of the workman, one thing appears to me to be beyond dispute
and that is that the relation of master and servant cannot exist where there is a total
absence of the right of supervising and controlling the workman under the contract; in
other words unless the master not only has the right to prescribe to the workman what
work has to be done, but also the manner in which that work has to be done.

The underlined passage says, simply put, that the supervisor must have the right to direct not only ​what
work is done, but also ​how t​ he work is done. Because the defendant company ​in casu ​did not decide
how the salesman conducted his work, the Court held that there was not the necessary relationship to
found vicarious liability. But in the application of the test, the Court actually looks at some other factors
which, although vaguely related to control, don’t seem to fit the narrowly-defined test just stated. The
Court noted that the salesman:
1. works on a commission salary rather than a fixed wage; 2. was permitted to do other activities
while travelling around, provided they did not conflict with his
sales; and 3. had to cover his own
travelling expenses.

o ​The integration test

As pointed out by the writer Kahn-Freund, there are some employees, e.g. doctors and pilots, whose
professional judgment must be trusted and are therefore not ‘controlled’ by their employers. The control
test was therefore seen as inadequate, and a new test was developed: the integration test. This test was
developed in English law and received into our law per Schreiner JA in the ​ratio ​of ​R v AMCA Services
Ltd 1​ 959 (4) SA 207 (A)​:

Inside the organisation you may have persons whose work is subject to close control,
or to slight control or to no control at all, as may seem most convenient. Some of the
 workers in the organisation may be paid by time and may be required to work during
fixed hours at specified places. Others may be paid by results and may not be
restricted in regard to hours of work or where it is to be done. Some may have transport
or other equipment provided, others may have to provide their own. Some may have no
latitude to work for other concerns, competing or non-competing, others may have
some such latitude. Some may work under supervision or subject to inspection, others
not. Some may be subject to regular leave agreements, others not. Though none of
these considerations will by itself be decisive they will all to a greater or lesser extent
throw light on the problem whether the persons in question are inside or outside the
business organisation or not.

The real question, then, is whether the employee is ​integrated i​ nto the employer’s business. Scott says
this test does capture some important aspects of an employment relationship, while admitting that it is
probably too vague to provide much guidance.

o ​The economic independence test

A variation on the integration test is the economic independence test. This test asks, ‘Is the employee’s
economic welfare dependent on the employer?’ For example, if the employer goes insolvent will the
employee lose his job? Scott says this test is probably also too vague.

o ​The dominant impression test

Courts have generally been sceptical of whether any unitary test will be able to generate the right answer
in every case. As a result the prevailing test in our law is now the ‘dominant impression’ or ‘multiple
criteria’ test, in which a veritable smorgasbord of factors is considered. This test emerges from ​Smit v
Workmen’s Compensation Commissioner ​1979 (1) SA 51 (A)​. In deciding whether the appellant was
a ‘workman’ within the meaning of the Workmen’s Compensation Act, Joubert JA criticised the control
test and preferred the broad ‘dominant impression’ test which had been advanced by Rabie CJ in
Ongevallekommissaris v AVBOB ​1976 (4) SA 446 (A)​, also when interpreting legislation (so this is a
slightly different context to common-law vicarious liability, but the reasoning could apply there too):

In many cases it is comparatively easy to determine whether a contract is a contract of

service and in others whether it is a contract of work but where these two extremes
converge together it is more difficult to draw a border line between them. It is in the
marginal cases where the so-called dominant impression test merits consideration. See
AVBOB​’s case, s​ upra ​per Rabie JA:
‘It was common cause that where a relationship has elements of both an
employment relationship and some other kind of relationship, one must try to
determine what kind of relationship is most strongly indicated by all the facts, or, as it
 was said by the court a quo, what is the "dominant impression" made by the
contract. I think this view of things is necessarily true, because if a relationship is not
predominantly that of master and servant, one could not rightly call it such.’ [​ my
translation] ​...
I have already indicated that the presence of a right of supervision and control is merely
one of the most important indicia that a particular contract is in all probability a contract
of service. Its presence is not the sole determinative factor since regard must also be
had to other important indicia in the light of the provisions of the particular contract as a
whole.

In applying the dominant impression test, Rabie CJ had in ​AVBOB ​considered various factors: the
employee’s working hours, his form of remuneration, and whether he had any other employment. ​Smit
approved these factors, also considering the degree of control exercised and the person’s freedom to do
other things. This list of factors is not closed. The result is a fairly vague test, but this vagueness is
probably necessary.

The borrowed servant

Another issue with the employment requirement is that of the ‘borrowed servant’: if A is employed by B
but is lent to C, who is liable for delicts committed by B in the course of his work for C? In other words,
​ is employer in this scenario? A good real-life example of this sort of situation is a crane
who is ​really h
operator, who is generally hired out along with the crane itself.

An example from our case law comes from ​Midway Two Engineering and Construction Services v
Transnet Bpk ​1998 (3) SA 17 (SCA)​: Midway, a labour broker, rented a scab driver to Transnet when
the latter’s employees went on strike. The driver was in an accident while working for Transnet, who
handled the insurance claim. But Transnet wanted Midway to pay, and therefore went to court to hold
them liable on the basis of vicarious liability. This meant that the crucial question was, ‘Who was the
driver’s ​real ​employer at the time of the crash?’ (Obviously Midway was the nominal employer.) The High
Court said that Midway was the real employer, and therefore held it vicariously liable. But, on appeal, the
SCA disagreed; it looked more carefully at the substance of the situation and said that, notwithstanding
the fact that he was nominally an employee of Midway, the driver was in reality acting as the employee of
Transnet. The Court reached this decision by reasoning that Transnet (and not the appellant) had the
power to tell the driver what to do and how to do it—in other words the Court was applying the control
test. But the Court added that one reaches the same conclusion by applying the dominant impression or
multiple criteria test. In applying ​this t​ est, the Court considered the following facts to be important:
1. The driver was effectively included or integrated into Transnet’s business (this recalls the
integration
test developed in ​R v AMCA Services​). 2. All of the driver’s deliveries were made at the behest
of Transnet and in order to serve Transnet’s
 purposes. 3. The driver’s insurance coverage was provided by Transnet, not Midway. (It is
convenient that in this case the insurer and the controlling entity were the same. One might wonder,
says Scott, whether the Court would’ve decided differently if Midway had been the insurer.)

Thus, the Court held, the control test and integration test independently yielded the same conclusion:
​ mployer. The Court stated, finally, that Transnet was more ‘closely
Transnet was the real or ​de facto e
associated’ to the risk-causing event than Midway. This provides implicit support for the enterprise risk
theory. Ultimately, then, Midway was not vicariously liable for the delict committed by the driver (rather,
only Transnet was), and so the appeal was upheld.

The ​Midway ​case exhibits a pragmatic, flexible approach to the borrowed servant problem; the Court
looked at the real, underlying situation rather than simply seeing who the nominal employer was.
Compare this to the fairly old English case of ​Mersey Docks & Harbour Board v Coggins & Griffith
(Liverpool) Ltd ​[1947] AC 1​,
where the Court just looked at the employment contract and rigidly gave affect to it. But since then
England has also come to favour a more flexible approach: in ​Viasystems (Tyneside) v Thermal
Transfer (Northern) Ltd ​[2006] QB 510 ​the Court looked at the underlying situation, and in fact held that
both f​ irms were ‘employers’ in the relevant sense, because both had been in control of the employee
who had committed the delict.

Other relationships giving rise to vicarious

liability

We know that an employment relationship is by far the most important kind of relationship which may
satisfy the second requirement for vicarious liability. However, there are other relationships which have
been held to satisfy this requirement. The Courts typically extend the requirement by analogy to the case
of employment. Sometimes this is straightforward, as with the relationship between:
a) a Cabinet Minister and the government: see ​Mangope v Asmal 1 ​ 997 (4) SA 277
(T)​; and b) a prefect and his school: see ​Dowling v Diocesan College ​1999 (3) SA
847 (C)​.

There are other cases, however, which are quite different to an employment relationship. We will look
more closely at one such case: the relationship between the driver of a vehicle and its owner. This was
dealt with in the case of ​Messina Associated Carriers v Kleinhaus 2 ​ 001 (3) SA 868 (SCA)​. A 19 year
old boy had been speeding in his father’s BMW when he skidded on some coal-dust lying in the road,
causing him to crash and completely destroy the car. It transpired that the appellant, a trucking company,
had spilt the dust from one of its trucks and had negligently failed to clean it up. The boy’s father
therefore sued the appellant in delict to recover the loss resulting from the damage to his car. The
appellant argued, however, that the son was guilty of contributory negligence because he was driving so
dangerously; and therefore the quantum of damages must be reduced. The court ​a quo ​summarily
rejected this argument, reasoning essentially that because there was no relationship between the son
and his father such as could found vicarious liability the son’s negligence would be irrelevant in
determining the amount owed to the father (who was the opposing party). However, on appeal the SCA
considered the relationship between the father and son in more detail, and ultimately concluded that the
son’s negligence could be attributed to the father. It justified this decision in the following way. To begin
with, the Court referred to the case of ​South African General Investment & Trust Co Ltd v Mavaneni
1963 (4) SA 89 (D)​, which had laid down a test to deal with cases where a motor vehicle was being
negligently driven by someone other than the owner. Fannin J stated in that case:

In South Africa the owner of a motor car is liable for the negligent driving of it by
another person authorised by him to drive it if: (a) the vehicle is being driven on behalf
of the owner, and (b) the relationship between the owner and the driver is such that the
former retains the
right to control the manner in which the car shall be
driven.

As to criterion (b), the SCA in ​Kleinhaus ​considered the case law on this test and concluded that the
better view is that the owner does not need to be in the car with the driver at the time of the accident; he
needn’t have had ​de facto c​ ontrol over the driver. All that is required is that the owner had the ​right t​ o
control the driver. Then, as to criterion (a), the Court confirmed that the vehicle must have at least partly
been driven for the owner’s purposes. But, crucially, the Court held that the two criteria are not ​necessary
conditions to establish the vicarious liability of the owner. Rather, they are mere indicia in the broader
enquiry as to whether the relationship between the owner and the driver is sufficiently analogous to that
between an employer and his employee to found vicarious liability. In this enquiry, one must consider all
the relevant factual circumstances as well as the policies which underlie existing cases where the law
attributes vicarious
liability. (In favouring a flexible, all-encompassing test for vicarious liability, the Court’s reasoning is
similar to that in ​Smit a​ nd ​AVBOB​.)

The Court then applies this test to the facts. The son was basically an errand boy for his mechanic father.
When he crashed the BMW, he had been driving to Messina to do his father’s banking and to rent some
porn videos. Clearly, therefore, the father retained the right to control the son’s driving, and the son’s
driving was at least partly aimed at serving his father’s purposes. On the whole, therefore, the
relationship between the father and son (i.e. the owner and driver) was very similar to an employment
relationship. For this reason, the father was vicariously liable for his son’s conduct, and so the quantum
of damages owed by the appellant stood to be reduced due to the son’s negligence.

Scott says this is a good decision. However, she notes that although the Court stated that one must
consider the policy considerations underlying the application of vicarious liability, the Court never actually
does so. She suggests that the reason might simply be that no-one really knows what the underlying
policy considerations are. It therefore becomes quite difficult for judges to do any creative development
of the law, and they are forced to resort to low-level analogical reasoning of the sort used in this
case—they just have to see how similar it is to an employment relationship.

Nevertheless, if you were to look at the justifications for the law of vicarious liability that we considered
earlier in the course, you would find that this judgment coheres with them: for example, holding owners
vicariously liable for delicts committed by those who drive their car would compel owners to be careful
about who they lend their cars to, and so on—in other words, the imposition of vicarious liability has a
deterrent effect. We can thus compare vicarious liability to strict product liability or the Roman law rule
that owners of dangerous animals were strictly liable for any harm caused by them: we must make
product manufacturers and the owners of dangerous animals take the utmost care to avoid doing harm to
others.

Liability for the delicts of independent contractors

We stated earlier that vicarious liability is not imposed for delicts committed by independent contractors
that one has hired—establishing that the person who committed the delict is an independent contractor
rather than an employee is one of the ways to show requirement 2 is ​not m ​ et. However, it is sometimes
the case that the person hiring the independent contractor will be ​directly ​liable for the independent
contractor’s conduct. In other words, he might be liable because all the ordinary elements of a delict are
satisfied (not only with respect to the independent contractor but also with respect to the person who
hired him).

For example, consider the case of ​Langley Fox Building Partnership (Pty) Ltd v De Valence ​1991 (1)
SA 1 (A)​. The owner of a building had hired an independent contractor to renovate it. While construction
was in process, the contractor left a beam sticking out of the building onto the adjacent pavement. The
respondent hit her head on the beam while she was walking past, and sued both the independent
contractor and the owner. Goldstone AJA (as he then was) applied the well-known ​Kruger v Coetzee
test for negligence to the owner’s conduct. He found that, although the owner hadn’t placed the beam
there himself, a reasonable person in his position would have foreseen the possibility of its injuring a
person and would have taken steps to prevent this possibility. In short, then, the owner was held liable
on the basis of ordinary delictual principles.

In ​Chartaprops 16 (Pty) Ltd and Another v Silberman 2 ​ 009 (1) 265 (SCA)​, Nugent JA in his minority
judgment might have introduced the concept of a non-delegable duty into our law. These are duties
where the performance of the duty can be delegated to another, but legal responsibility for that
performance cannot be
delegated. The upshot is that even if you’ve hired somebody else to discharge that duty, you will still be
liable for any of their failures. This is a kind of hybrid between direct liability and vicarious liability: it is not
a case of attribution (the defendant was still the one who bore the duty, because by definition the duty
can’t be delegated), so in a sense it is direct; but it also imposes strict liability on one person for the
conduct of another, so in a sense it is vicarious. Note that even where a master has employed an
independent contractor totally reasonably—the contractor is a suitable person and the master supervises
him well—the master may be held strictly liable for the contractor’s conduct. Clearly this is very different
from ​Langley Fox,​ because in that case Goldstone AJA required that the master be at fault (specifically,
the judge found that he was negligent). The result of a non-delegable duty is effectively that the
defendant is expected not merely to take reasonable precautions against harm but also to ensure that
reasonable precautions ​are taken by others​, specifically by the person to whom he has delegated the
performance of the duty.

If our law is going to recognise the existence of non-delegable duties, we need some mechanism of
deciding ​when a ​ duty is in fact non-delegable. Nugent JA says:​2

There can be no exhaustive test for determining when a person is expected not merely
to take reasonable precautions against harm but instead to ensure that such
precautions are taken for ... that is necessarily bound up with the particular facts. But
[there is] one feature that was common to the cases in which that higher duty has been
held to exist, which is that the relationship between the plaintiff and the defendant was
‘marked by special dependence or vulnerability on the part of *the defendant+’.

As to the details of the case: Silberman had slipped while she was shopping in a shop owned by
Chartaprops, because something had been spilt on the floor. Chartaprops hired an independent
contractor, Advanced Cleaning, to keep its shop clean. Advanced Cleaning was in theory very vigilant,
but in this case it had failed to clean up the spill timeously. Silberman sued both Chartaprops and
Advanced Cleaning. The High Court held only Advanced Cleaning liable, who then appealed to the SCA.
In that Court, Nugent JA ultimately held only Chartaprops liable, reasoning as follows:

A person who invites the public to frequent a shopping mall will be expected by
members of the public to have ensured that the floors of the premises are reasonably
safe and will expect to look to that person if they are not. ... *Shoppers+ are entirely
reliant upon the person in control of the premises to ensure that reasonable precautions
are taken to keep the floor safe. It seems to me in the circumstances that it is
reasonable to expect that a person in control of a shopping mall to ensure that
reasonable precautions are taken to keep the floors safe and is liable if those
precautions are not taken by a person who he or she has appointed to do so.

Thus Nugent JA reasons that Chartaprops was under a non-delegable duty towards its shoppers, and so
it is liable for the failure to clean up the spillage notwithstanding the fact that it had hired Advanced
Cleaning to do its cleaning.

By contrast, the majority simply approved the ​Kruger v Coetzee ​test, as applied in ​Langley ​Fox, and
found that Chartaprops had not been negligent. As to Advanced Cleaning, it simply affirmed the finding
of the court ​a quo

2 ​
Scott said the three criteria where there will be a non-delegable duty are: (1) the defendant has undertaken to supervise or

control the
​ independent contractor, thus assuming responsibility for the latter’s conduct; (2) there is a particular vulnerability of
third parties to the contractor’s conduct; and (3) the employer’s business is especially risky. But I have no idea where she got
those.
(i.e. that it was liable). The majority discussed at length and then emphatically rejected the concept of a
non- delegable duty. Their criticisms were essentially the following:
a. It is a total mystery when a non-delegable duty will actually arise; the concept is applied
haphazardly
and is grossly under-theorized. b. This is particularly problematic because it means that ​strict
liability i​ s being imposed capriciously. c. ‘Non-delegable duty’ is simply a label that common-law
jurisdictions use to mean ‘strict liability’; using this term in South Africa tends to confuse our law,
especially because it has been applied in such an opaque and unprincipled way. d. The effect of
imposing a non-delegable duty, viz. to require the defendant to be particularly vigilant on account of
abnormally high risks and especial vulnerabilities, can be accommodated by our ordinary negligence
principles because a reasonable person in the face of those risks and vulnerabilities would be
particularly vigilant.

Scott agrees with these points and says that Nugent JA has not done nearly to justify his departure from
the fundamental ‘no liability without fault’ principle. Although common-law jurisdictions (like England, from
whom he got the non-delegable duty idea) do not care much for the principle, in our civil law tradition it is
absolutely fundamental. Nugent JA therefore owed a much better explanation.

Nevertheless, Scott says that the majority is also wrong because it conflates contract and delict: just
because Advanced Cleaning has breached its contract with Chartaprops this does not suddenly make it
delictually liable to any third party harmed as a result of its conduct.​3

3 The course and scope requirement

Throughout the common-law world, lots of appellate decisions have radically extended the ambit of
vicarious liability by expanding the course and scope requirement. The judgment of O’Regan J in ​K v
Minister of Safety and Security ​2005 (6) SA 419 (CC) ​very much receives this trend. In this section, we
first consider the traditional course and scope test and see how it has changed over time.

The traditional Salmond test

The traditional course and scope test was given by ​Sir John
Salmond​:

It is clear that the master is responsible for acts actually authorised by him ... But [he] is
liable even for acts which he has not authorised, provided they are so connected with
acts which he has authorised that they may rightly be regarded as modes—although
improper modes—of doing them.

This test was accepted into South African law in ​Feldman (Pty) Ltd v Mall ​1945 AD 733 ​per Greenberg
JA. There are, on this approach, two ways of satisfying the course and scope requirement: either the
employee was doing what he was specifically authorised to do, or otherwise he was doing something
which he was not authorised to do but which was ‘so connected’ with authorised acts that it may be
regarded as a mode of

3 ​
According to Nugent JA the court ​a quo ​had found Advanced Cleaning to be negligent and that this finding was not challenged

on appeal.
​ I would say that this fact, rather than the fallacious inference Scott attributes to the majority, is why the majority glibly
states that Advanced Cleaning is clearly liable.
doing the authorised acts. Unsurprisingly, it is the latter leg of the test which is the trickier one, and the
one whose historical development we will be discussing.

Some acts will, on application of this test, clearly be within the course and scope of the actor’s
employment, e.g. a bus driver getting a speeding ticket on his normal rounds. On the other extreme,
some acts will clearly fall outside the course and scope of employment, e.g. he steals the bus after hours
and goes joyriding. The difficult cases are those that fall in the middle ground. In what follows we
consider three cases which have applied the Salmond test.

The first case is ​Mkhize v Martens ​1914 AD 383​. Martens employed three boys who helped him on his
farm. One day he asked them to drive his mules somewhere. The boys did so, and while they waited for
Martens to arrive they made a fire to cook their lunch. They were negligent, however, and the fire spread
to Mkhize’s land and caused it damage. Mkhize sued Martens, who argued that he wasn’t vicariously
liable because he hadn’t asked the boys to start the fire and they had started it for their own purposes.
The Court disagreed. It reasoned that the boys’ starting the fire to feed themselves, while not specifically
authorised by Martens, was connected with their authorised task of driving the mules.

In ​South African Railways and Harbours v Marais ​1950 (4) SA 610 (A)​, a train driver had allowed a
passenger to ride up front with him in the locomotive, contrary to a direct instruction from the appellant
not to do so. The train derailed, and both the driver and the passenger died. The passenger’s widow
sued the appellant for loss of support, claiming that it was vicariously liable. While accepting that the
passenger would not have died had he been in the normal seats, Watermeyer JA refused to hold the
appellant vicariously liable. He reasoned that an act done by a servant for his own purposes—like asking
his buddy to come have a dop with him while on duty and in direct contravention of the rules of his
employment—cannot be considered to fall within the course and scope of his employment. Scott says
that although this is a tough case to decide, the decision is probably correct: the key ingredient in the
passenger’s death was the driver’s allowing him to ride in the locomotive, and this was clearly contrary to
his employer’s instructions and was simply a ‘frolic’ done for his own purposes.

The final case here is ​Rose v Plenty [​ 1976] 1 WLR 141​, an English case. Rose was a boy who assisted
a milk deliveryman. He would jump off the delivery cab, deliver the milk and jump back on while the cab
kept driving. The deliveryman’s employer specifically prohibited the drivers from getting children to assist
them. Rose was injured when the deliveryman negligently crashed the cab, so he sued the deliveryman’s
employer on the basis of vicarious liability. The Court of Appeal per Lord Denning held that the employer
was vicariously liable even though the deliveryman had been engaging in conduct which the employer
had specifically prohibited. The reason for this finding was basically that the deliveryman was
nevertheless serving his employer’s purposes (of delivering milk), and so he was acting within the course
and scope of his employment. Thus the difference between ​Marais a ​ nd ​Rose i​ s that in the former case
the wrongful act was done for the employee’s private purposes while in the latter case it was done (at
least partly) in service of the employer’s.

The ​Rabie t​ est and the problem of intentional

wrongs

South African law has since moved beyond the Salmond test, or at least beyond the way it was
traditionally applied. On the traditional test it would be very rare indeed for an intentional wrong to fall
within the course and scope of the servant’s employment. After all, if the employee has deliberately
committed a delict it is hard to see how that could have been authorised by his employer or even closely
linked to the tasks which he was authorised to do. But when faced with facts involving these intentional
wrongs, courts in South Africa (and
abroad; see the comparative law section below) have dramatically expanded the notion of a ‘sufficiently
close connection’.

One of the first major cases illustrating the departure from the traditional test was ​Minister of Police v
Rabie ​1986 (1) All SA 361 (A)​. Van der Westhuizen was a police sergeant, but his police duties were
simply that of a mechanic. At a party one night, he got very drunk and was kicked out. Just outside, he
happened upon the plaintiff, Rabie. In his intoxicated state he inexplicably accused Rabie of trying to
break into a nearby building. He severely assaulted Rabie, before eventually taking him to the police
station where he laid a charge against him. Rabie later sued the Minister for his assault, wrongful arrest,
and subsequent imprisonment. The issue was whether Van der Westhuizen had been acting within the
course and scope of his employment when doing the wrongful acts.

So, what was the scope of his employment with the police? He was merely a mechanic, he wasn’t on
duty when he assaulted Rabie, and he was acting contrary to the Police Act. On the other hand, he was
a policeman, and was in a position to exercise ordinary police functions if necessary. What was the
relationship between his actual conduct and his employment? Well, he claimed that he was acting in his
capacity as a policeman, and it is certainly conceivable that he genuinely believed that he was doing so.

Jansen JA gave the following statement of the test for the course and scope
requirement:

It seems clear that an act done by a servant solely for his own interests and purposes,
although occasioned by his employment, may fall outside the course or scope of his
employment, and that in deciding whether an act by the servant does so fall, some
reference is to be made to the servant's intention. The test is in this regard subjective.
On the other hand, if there is nevertheless a sufficiently close link between the
servant's acts for his own interests and purposes and the business of his master, the
master may yet be liable. This is an objective test.

So there is a subjective test for the servant’s intention: Does the servant consider himself to be acting
within the course and scope of his employment, or is he acting ​mala fides ​for his own ends? But there is
also an objective test: Is there a sufficiently close connection between the servant’s self-interested act
and the business of his employer? If yes, this in itself is a sufficient condition to establish the course and
scope requirement (regardless of whether the act was ​mala fides)​ .

Jansen JA assumes for the sake of argument that Van der Westhuizen’s acts were totally ​mala fides.​ But
he finds, on the objective test, that there was a sufficiently close connection between these acts and his
master’s business; and thus he holds the Minister vicariously liable. The objective test recalls the
Salmond test, but this is a much more radical application; Jansen JA gives a much wider meaning to
‘sufficiently close connection’ than any previous cases.

Scott also notes Jansen JA’s further

remarks:

In my view a more apposite approach to the present case would proceed from the
basis for vicarious liability mentioned by Watermeyer CJ in ​Feldman ​at 741:

‘A master who does his work by the hand of a servant creates a risk of harm to others if
the servant should prove to be negligent or inefficient or untrustworthy; that, because
he has
 created this risk for his own ends he is under a duty to ensure that no one is injured by
the servant's improper conduct or negligence in carrying on his work’.

By approaching the problem whether Van der Westhuizen's acts were done “within the
course or scope of his employment” from the angle of creation of risk, the emphasis is
shifted from the precise nature of his intention and the precise nature of the link
between his acts and police work, to the dominant question whether those acts fall
within the risk created by the State. By appointing Van der Westhuizen as a member of
the Force, and thus clothing him with all the powers involved, the State created a risk of
harm to others, viz. the risk that van der Westhuizen could be untrustworthy and could
abuse or misuse these powers for his own purposes or otherwise, by way of unjustified
arrest, excess of force constituting assault and unfounded prosecution. Van der
Westhuizen's acts fall within this purview and in the light of the actual events it is
evident that his appointment was conducive to the wrongs he committed.

The gist of this quote is that the SAPF had clothed Van der Westhuizen with the authority of a policeman,
accepting certain risks into the bargain, and those risks came to fruition when Van der Westhuizen used
his authority to assault and arrest Rabie. Thus, ‘the State, in view of the risk it created, should be held
liable for Van der Westhuizen's wrongs’. The passage quoted above gestures at the enterprise risk
justification for the imposition of vicarious liability. In fact, Jansen JA suggests that risk-creation could be
the basis for a standalone test for vicarious liability, but he doesn’t develop this test in the case.

The minority per Van Heerden JA just applied the traditional Salmond test, in terms of which the Minister
would be vicariously liable only if Van der Westhuizen’s conduct can be regarded as a ‘mode’ of doing
what he was authorised to do. Because Van der Westhuizen was acting ​mala fides f​ or his own purposes,
Van Heerden JA finds that they cannot be regarded thus. Note that Van der Westhuizen’s subjective
intention is, on Van Heerden JA’s reasoning, determinative. In the majority approach, it was not. Scott
says that Van Heerden JA’s judgment may yield the right outcome on these facts, but the majority’s
development of the law is more compelling.

To sum up, the ​Rabie ​says that there are two ways to found vicarious
liability:
1. The employee subjectively believes that he is acting in the course and scope of his employment,
even if this belief is unreasonable. Although Jansen JA’s test, above, only says that ‘some reference’
is to be made to subjective intention, the SCA in future began to treat this as a stand-alone condition
sufficient to establish vicarious liability. In other words, the mere fact that the employee subjectively
believed that he was acting in the course and scope of his employment would, no matter how
unreasonable the belief, be enough to establish liability. This is implicit in the reasoning in ​Minister
of Safety and Security v Luiters 2 ​ 006 (4) SA 160 (SCA)​: An off-duty policeman unlawfully shot a
bystander while in pursuit of a man who had mugged him, but he believed that he was acting in the
course and scope of his employment so the Minister was held liable. Scott says this aspect of our law
 is dumb, because there needs to be ​some ​objective element; otherwise the employer will be liable
even if the employee’s belief is insanely unreasonable. 2. There is objectively a sufficiently close
connection between the acts of the servant and the business of the master. This allow for the
​ cts undertaken for the servant’s purposes can nevertheless fall within the
possibility that ​mala fides a
course and scope of his employment. Perhaps it is counterintuitive to think of an intentional wrong as
being within the course and scope of employment, but we have already seen that this is possible in
Rabie​.
Despite what we said above, it is occasionally possible that an intentional wrong can found vicarious
liability even on the traditional Salmond test: in other words, the intentional wrong constitutes a
mode—albeit an improper one—of doing the employer’s work. A good example of this is ​Mattis v
Pollock ​[2003] 1 WLR 2158​. The case concerned a bouncer working at a London nightclub owned by
Pollock. Mattis went to the club one night, and the bouncer assaulted one of Mattis’s friends (who had
previously been barred from the club). Mattis intervened along with a number of other angry bystanders,
and they forced the bouncer to flee. The bouncer went home, got a knife and came back. Recognizing
Mattis as one of the people who had interfered, the bouncer stabbed him in the back and rendered him a
paraplegic. The Court held that Pollock, who had employed the bouncer, was vicariously liable on the
basis of the traditional Salmond test. This was because Pollock encouraged the bouncer to be
intimidating and violent. Thus, even though his conduct was intentional and illegal, the bouncer had
acted within the course and scope of his employment in stabbing Mattis.

Scott likes this decision, but she notes that there are very few jobs which have this character (viz. where
illegal acts can be said to constitute modes of doing one’s work). Thus, in most cases of intentional
wrongs, application of the Salmond test will not result in vicarious liability. Therefore the law needs a new
​ id; and
test if it wishes to expand the scope of vicarious liability. This, of course, is exactly what ​Rabie d
an even more drastic expansion was undertaken later, on the basis of the Constitution:

K v Minister

In ​K v Minister of Safety and Security ​2005 (6) SA 419 (CC)​, it was common cause that three on-duty
policemen had offered K a lift home, but then they had assaulted and raped her. The three policemen
were given very strict criminal sentences, but we are concerned with the civil action. The issue was
whether the State was vicariously liable for the delict committed by the policemen. The Constitutional
Court held that the State was vicariously liable, following a profound extension of the pre-existing law.

Let’s first recap briefly: We’ve seen that ​Mkhize v Martens a ​ nd other cases applied the traditional
Salmond test to decide whether the servant has deviated so as to fall outside the course and scope of
his employment. Then ​Rabie i​ s taken to have refined or developed the Salmond test, so that when K
instituted proceedings there was a two-fold test to determine whether the course and scope requirement
is satisfied:
1. Did the servant subjectively intend to serve his master’s purposes? If yes, he was acting within the
course and scope, but if no we turn to the next question: 2. Was there a sufficiently close
 connection between the servant’s conduct and his employment? If yes,
he was acting within the course and scope, but if no he was
not.

K instituted proceedings in the High Court, where she lost, and then appealed to the SCA. The SCA
adopted the following approach:

The legal principles underlying vicarious responsibility are well-established. An

employer, whether a Minister of State or otherwise, will be vicariously liable for the
delict of an employee if the delict is committed by the employee in the course and
scope of his or her employment. Difficulty frequently arises in the application of the rule,
particularly in so- called ‘deviation’ cases. But the test, commonly referred to as the
‘standard test’, has been repeatedly applied by this Court. Where there is a deviation
the inquiry, in short, is whether the deviation was of such a degree that it can be said
that in doing what he or she did the employee was still exercising the functions to which
he or she was appointed or was still carrying out some instruction of his or her
employer. If the answer is yes, the employer will
be liable no matter how badly or dishonestly or negligently those functions or
instructions were being exercised by the employee.

Obviously it is difficult to make the case that the policemen were doing this, which is why the SCA
ultimately dismissed the appeal and why, when the Constitutional Court heard the matter, it had to
develop the existing law.

On appeal to the Constitutional Court, K advanced three main

arguments:
1. The SCA erred in applying the standard test. 2. Alternatively, the test must be
developed in light of the Bill of Rights and s 39(2). 3. Alternatively, the State was
directly liable.

The case turned on the new and fairly radical constitutional argument based on s
39(2).

The preliminary issue O’Regan J deals with is jurisdiction. The Minister argued that the CC had
addressed the jurisdiction issue in ​Phoebus Apollo Aviation CC v Minister of Safety and Security
2003 (2) SA 34 (CC) ​(which dealt with very similar facts involving a policeman committing a crime) and
held that there was no constitutional issue there. Thus, it was argued, the Court had an established
precedent showing that there was no constitutional issue; and thus the Court had no jurisdiction. But
O’Regan J rejected this argument, because she said the appellant was making an argument that was not
advanced in ​Phoebus.​ This was of course argument 2 above, which is based on the Bill of Rights and s
39(2) of the Constitution. Therefore there is clearly now a constitutional issue.

But the Minister argued further that Kriegler J in ​Phoebus ​had remarked that the application of the
vicarious liability rules is a matter of fact, not of law; and therefore no normative or Bill of Rights-based
enquiry could be involved. This O’Regan J also rejected, saying that the principles of vicarious liability,
when viewed through the prism of s 39(2), must clearly involve a consideration of the Constitution and its
values. One cannot sterilize the common-law from the Constitution; this would be incompatible with the
adjudicative task under the new constitutional dispensation, and would amount to being a flaccid
formalist cunt.

So O’Regan J proceeds to the merits. First she sets out the standard common-law test for vicarious
liability. Then she notes that although in most cases it is clear when the course and scope requirement is
satisfied, difficulties arise where, as in the present case, the act is an intentional wrong. She considers
Feldman v Mall​, ​Salmond ​and ​Rabie​, ultimately accepting that the ​Rabie ​test is the one that is now
fixed in our law. And this test, she notes, is not purely factual; it is also one of law: it requires us to
determine what, as a matter of law, constitutes a sufficiently close connection between the acts of the
employee and the business of his employer. And, crucially, in answering this question of law we must
give effect to the spirit, purport and objects of the Bill of Rights. (O’Regan J then considers the law of the
UK and Canada in this area. We will cover this in more detail later, but for now note that she says that
the ​Rabie ​test, or something like it, is pretty well accepted internationally. Scott agrees that this is the
case.) Scott notes that it is the objective leg of the ​Rabie ​test (see above) that allows values to be
considered. The result is that courts can openly investigate the values underlying vicarious liability, and
develop the common-law in accordance with the Constitution’s values.

So thus far O’Regan J has stated our law’s course and scope test, and has stated that it is possible for
the Court to develop it in accordance with s 39(2). Then she gives the following arguments for why it
must in fact be developed in this case:
1. The police have a duty to protect the public from crime, as does their employer, i.e. the
Minister.
2. The policemen in question offered to assist K, and K placed her trust in them ​by virtue of their
office​. Indeed, one of the purposes of police uniform is to make them visible to the public so the
public can seek assistance from them. The police must nurture this trust—so not only ​do p ​ eople trust
the police, but normatively they ​should ​do so. 3. There was a simultaneous omission (failure to
protect K from harm) and commission (rape) by the policemen. (Earlier O’Regan J had implied that
an omission or failure to do one’s designated job could still attract vicarious liability.)

O’Regan J continues:

In my view, these three inter-related factors make it plain that viewed against the
background of our Constitution, and, in particular, the constitutional rights of the
applicant and the constitutional obligations of the respondent, the connection between
 the conduct of the policemen and their employment was sufficiently close to render the
respondent liable.

Ultimately the Court finds that the Minister is vicariously liable for the delict committed by the policemen,
thus overturning the judgments of the High Court and SCA. The Court remitted the matter to the High
Court to determine the quantum of damages.

Criticisms of ​K

1. Was O’Regan J right about the common-law? Was she right to apply the ​Rabie ​test rather than the
standard Salmond test? Could they have just used the Salmond test to hold the Minister vicariously
liable?

This is a criticism Fagan developed in his journal article at 159 ff. He argues that the ​Rabie ​test was,
contrary to popular belief, ​obiter​. The relevant passage of the ​Rabie j​ udgment is as follows:

Our leading cases mostly deal with deviations by the servant from his duties at a time
when he is actually engaged on his master's work, and the tests there applied do not
seem wholly apposite to the present type of case where the servant during the pursuit
of his own private affairs ostensibly embarked on his master's business. Nor do I
understand [certain earlier judgments] necessarily to go beyond the deviation cases
and to prescribe rules for all circumstances. In my view a more apposite approach to
the present case would proceed from the basis for vicarious liability mentioned by
WATERMEYER CJ in ​Feldman ​at 741 ... [what follows is quoted above].

The point is that Jansen JA was actually saying that the test he had just described—now known as ‘the
Rabie t​ est’—was not ‘wholly apposite’ to the issue at hand. The test which was ‘more apposite’ is the test
which directly applies the enterprise risk theory. The result is that this enterprise risk rule, rather than the
so-called ​Rabie t​ est, is the ​ratio ​of the case.

However, O’Regan J seems to think that Jansen JA was actually saying that the standard Salmond test
was not wholly apposite, and that the ‘more apposite approach’ was the ​Rabie ​test. But if this is simply a
misunderstanding of the judgment, and in fact the so-called ​Rabie ​test was ​obiter (​ because Jansen JA
did not actually apply it), then its precedential status is severely limited. This alone would suggest that
O’Regan J’s understanding of the pre-existing common law was wrong.
But, moreover, the Supreme Court of Appeal had actually overruled ​Rabie ​altogether in two separate
judgments. In ​Minister of Law and Order v Ngobo 1 ​ 992 (4) SA 822 (A)​, Kumleben JA explicitly rejects
the enterprise risk test:
 ​ abie​’s case may be said to have replaced the standard test with one
[I]n so far as R
based on creation of risk, I am for the reasons stated of the view that it was wrongly
decided.

The judge then approves and applies ‘the standard test’. This is basically the general requirement that
the employee is acting in the course and scope of his employment, which Scott says the SCA at that time
understood to simply involve the application of the Salmond test.

And in ​Ess Kay Electronics Pty Ltd and Another v First National Bank of Southern Africa Ltd 2 ​ 001
(1) SA 1214 (SCA)​, Howie JA stated along similar lines that ​Rabie ​was conceptually confused and that
‘*t+his mistaken view of the legal position was set right in ​Ngobo​’.

The result is that O’Regan J was using an ​obiter ​test from a judgment whose ​ratio ​had been emphatically
rejected. It is therefore extremely strange that O’Regan J considered the ​Rabie t​ est to reflect the
common-law position. The ​Rabie ​test was not fixed in the common-law when ​K v Minister w ​ as decided,
so the SCA was correct to use the standard test.

2. Did the Constitutional Court have jurisdiction to hear the

case?

Recall that the Minister argued that the Constitutional Court had no jurisdiction to hear the matter, and
that the Court’s response was that the test was partly legal and therefore allowed for the expression of
values. This reasoning depends upon the distinction between matters of fact and matters of law. The
problem is that O’Regan J treats this distinction as a naturalistic distinction, when in fact it is a purely
nominalist, pragmatic or technical distinction. In other words, labelling something as a matter of fact or
law says nothing about its real properties or characteristics; rather, it is simply a label which lawyers use
to denote that the matter has certain legal consequences. In particular, if something is a matter of fact
then ​inter alia:​ it is non-appealable; it is a question for the jury, if any, and not for the judge; and a finding
on that matter has no precedential value. These particular consequences are not important. What is
important is that labelling something as a matter of fact or law could never determine whether or not the
matter concerns values. Therefore O’Regan J’s inference is mistaken. The correct view is that the test
always had a value aspect.

Stevie Wag makes a broader point about jurisdiction in his journal article. To found jurisdiction, O’Regan
J needed to bring the matter within s 39(2). She therefore invoked K’s constitutional rights against the
State to argue that this was a constitutional matter. But the problem is that vicarious liability is about
attributing the delict of a servant to the master even in the absence of any direct responsibility of the
master for such delict. In other words, it is totally irrelevant whether the master has infringed anyone’s
rights; the question is whether the ​servant ​infringed someone’s rights (so as to commit a delict), and if he
has then we use vicarious liability to attribute strictly the delict to the master. Therefore K’s rights against
the State have absolutely no relevance; all we should consider are her rights against the policemen. As
Stevie Wag says, ‘logically, the Bill of Rights can only affect personal liability outcomes, and is irrelevant
to vicarious liability’. (Once you’ve established that the servant committed a delict all you have to do to
impute vicarious liability to his master is to satisfy the particular relationship and course and scope
requirements, neither of which have anything to do with rights or duties.) Thus O’Regan J is a poes.
Scott thinks that K’s counsel should’ve argued the case on a totally different basis, namely on the basis
that the State was ​directly l​ iable for failing to control its policemen, thereby satisfying the elements of a
delict. This might be fairly difficult to argue, but it would be a much better way to develop the law.
Because they chose vicarious liability as the basis for their argument, it becomes a mystery why they
referred to the State’s responsibilities.

3. Her three arguments justifying her application of the test are shite.

Remember that O’Regan J gave three justifications for her finding that the Bill of Rights required
development of the common-law. The ‘double duty’ argument (argument 1 above) is nonsensical,
because of what we just said in respect of jurisdiction: the State’s duty is totally irrelevant to vicarious
liability. The simultaneous omission and commission (argument 3 above) is also dubious. O’Regan J was
drawing on the example used by Watermeyer J in ​Feldman v Mall​: Imagine a signalman employed by a
railway company leaves his post while on duty, thus causing an accident. The signalman’s omission
(leaving his post) could rightly be regarded as a mode of doing his job, even though he is not doing so
through positive action. So his point is that omissions can still be adequately dealt with under the
standard test. But even if you agree that the signalman’s omission was a mode of doing his job, one
need not conclude that the policemen’s omission was a mode of doing their job. How could you possibly
say that the policemen were doing their job (albeit improperly)? It is very artificial to say that rape is a
mode of doing police work. But if this is the case, then O’Regan J’s characterizing the policemen’s
conduct as a simultaneous omission and commission and then invoking Watermeyer J’s dictum about
omissions does nothing to justify the conclusion that the policemen were acting in the course and scope
of their employment.

This leaves argument 2. Scott is a big fan of this argument, which she says is really the enterprise risk
justification in a new guise. Rape was a risk generated by the policemen’s office, conferred upon them by
the State. Recall the reasoning of Jansen JA in ​Rabie​:

By appointing Van der Westhuizen as a member of the Force, and thus clothing him
with all the powers involved, the State created a risk of harm to others, viz. the risk that
van der Westhuizen could be untrustworthy and could abuse or misuse these powers
for his own purposes or otherwise.
The risk that the policemen would abuse their power, and the trust that K placed in them, was a basic
and non- tangential one. (Many people disagree with Scott on this, including Fagan.) Indeed she only got
into the car because she trusted the policemen—and rightly so; the law must encourage citizens to trust
policemen. So the idea seems to be that by giving policemen their uniform and office, the State takes
responsibility for the risks caused or enhanced thereby.

Vicarious liability and intentional delicts in other common-law

jurisdictions

Other Commonwealth jurisdictions have dealt with precisely the same problem (namely trying to deal
with intentional deviations from employment by means of a modified Salmond test), and O’Regan J
clearly thought something could be gained by looking at other jurisdictions’ attempts to deal with the
problem.

o ​Canada
Both ​Bazley v Curry ​[1999] 2 SCR 534 ​and ​Jacobi v Griffiths [​ 1999] 2 SCR 570 ​are about child abuse
by caregivers, and trying to impose vicarious liability on the caregivers’ employers. In ​Bazley,​ Mr Curry
worked for a care facility for very young delinquents. He was required to give total care to these children,
bathing them and tucking them in at night, and he had a lot of control over them; he was basically their
substitute parent. In ​Jacobi​, the defendant worked at a recreational aftercare facility for slightly older
children. He had far less contact with and control over the kids, and the assaults actually occurred off the
premises and after hours. This factual different between the cases yields different outcomes, as we will
see below.

The ​Bazley v Curry j​ udgment was delivered by McLachlin J. She says the
following:

Both parties agree that the answer to this question is governed by the Salmond test,
which posits that employers are vicariously liable for (1) employee acts authorized by
the employer; or (2) unauthorized acts so connected with authorized acts that they may
be regarded as modes (albeit improper modes) of doing an authorized act. Both parties
also agree that we are here concerned with the second branch of the test. They
diverge, however, on what the second branch of the test means. The Foundation says
that its employee’s sexual assaults of Bazley were not “modes” of doing an authorized
act. Bazley, on the other hand, submits that the assaults were a mode of performing
authorized tasks, and that courts have often found employers vicariously liable for
intentional wrongs of employees comparable to sexual assault.
 The employment and enterprise must not only present the mere opportunity to commit
the tort, but must materially enhance the risk, in the sense of significantly contributing to
it.

The fundamental question is whether the wrongful act is sufficiently related to conduct
authorized by the employer to justify the imposition of vicarious liability. Vicarious
liability is generally appropriate where there is a significant connection between the
creation or enhancement of a risk and the wrong that accrues therefrom, even if
unrelated to the employer's desires.

So she uses the Salmond test; and the second leg of that test is the crucial one (the same was true of
the SCA in ​K​, but they reached the opposite conclusion). McLachlin J finds in favour of the plaintiff,
effectively expanding the second leg to include value or policy considerations (although she seems to
have regarded the test as traditionally including these). It is important that McLachlin J approves of the
enterprise risk justification for the imposition of vicarious liability. She also adds a gloss to the general
principle, namely that the employment must ​materially ​enhance the risk, which Scott thinks is important.

On application of this test, McLachlin J finds that this policy motivation is satisfied by the facts. A key
aspect of the employment was the physical contact and intimacy with the children that it afforded. And so
the employment was directly required for the wrong to occur, i.e. it materially enhanced the risk of its
occurring; the risk was right at the heart of his employment, and there was no other way he could have
gotten the required level of access to his victims.

In ​Jacobi,​ however, the employment was a ​sine qua non ​(in that the wrongdoer would not have met his
victims without it) but it did not materially enhance the risk; it was incidental, really, that he met the
children through his work, and his doing so was not a truly necessary cause.
Returning to ​Bazley​, Scott notes that McLachlin supplemented her enterprise risk justification by saying
that vicarious liability was also desirable for the following reasons (the first two of which we’ve already
encountered):
1. deterrence, i.e. it incentivizes the employer to do all that is reasonably possible to prevent the risk
of
the harm materializing; 2. it allows victims to claim against a solvent defendant (Scott notes that
clearly courts like this
justification); 3. the corporations or organizations that are held vicariously liable allow the loss to
be spread around
society through insuring against the risk or passing the costs on to its
customers.
 o ​England

The House of Lords heard an important case with similar facts to the above: In ​Lister v Hesley Hall
[2002] 1 AC 215​, the warden of a boardinghouse had abused his students. The boys were older than in
Bazley ​and there was less intimacy, but the warden still had immense power over the boys. In the Court
of Appeal, the plaintiff’s claim was rejected because it was held that the Salmond test was not satisfied.
But, like the Canadian Supreme Court in ​Bazley a ​ nd our Constitutional Court in ​K,​ the House of Lords
held the defendant vicariously liable.

They did so on the basis of a modified version of the Salmond test. The test to be applied, said Lord
Steyn, was ‘whether ... the torts were so closely connected with *the+ employment that it would be fair
and just to hold the employers vicariously liable.’ The sufficiently close connection aspect is familiar, but
the fairness or justice requirement is relatively new and far too vague to provide guidance in future
cases. The majority judgment is therefore rather opaque.

What is significant about the Lords’ reasoning is that they held that the duty to care for the kids rested
equally on the warden and the school itself. This was therefore a ‘double duty’ situation, the Lords
stressing both legal relationships. In effect, the Lords ended up tacitly employing the concept of a
non-delegable duty (remember the ​Chartaprops ​minority): the school couldn’t delegate its duty to the
warden, so when the warden breached this duty the breach was equally attributable to the school. This is
really a form of ​direct ​liability, since we are saying that the school itself has breached a duty. (So the
Lords are basically committing the same error as O’Regan in ​K​, of inquiring into the employer’s duties to
hold it vicariously liable.)

But when the Lords heard another, similar case (an appeal from Jamaica while sitting as the Privy
Council), they took a different approach. The case was ​Bernard v Attorney General of Jamaica ​[2005]
IRLR 398​, in which a crazed policeman had assaulted and shot Bernard for no good reason. Lord Steyn
held that the creation of special risks, though not the overarching criterion, was at least a factor to be
considered in determining whether a sufficiently close connection could be found between a tort and the
wrongdoer’s employment. Thus the Lords moved further away from the Salmond test towards the ​Bazley
v Curry a ​ nd ​K a
​ pproach. The Commonwealth jurisdictions seemed to be lining up behind the enterprise
risk rationale.

o ​Australia

​ ew South Wales v Lepore, Samin v Queensland, Rich v

But wait! The dirty Australians in N
Queensland ​[2003] HCA 4 ​refused to follow this approach, regarding the traditional Salmond test as
adequate. The test they applied, in other words, was whether the employee’s conduct could be regarded
as a mode, albeit an improper one, of doing his job. The only risks they considered relevant to defining
an employer’s vicarious
liability were those ​incidental ​to the conducting of its enterprise (in other words, they consider a very
narrow category of risks, in accordance with the Salmond test). On this basis, the Court did not find the
defendant vicariously liable.

Evaluation

Scott regards this as an important example of a Commonwealth court conservatively resisting the
development of the course and scope test in line with the enterprise risk justification. But is the difference
between the courts’ approaches simply motivated by the facts before them? Were the abovementioned
courts more progressive than the High Court of Australia simply because on the facts before them
imputing vicariously liability felt right? Quite possibly. But then the crucial issue is to develop the test in
such a way that it not only generates the right answer ​in casu b ​ ut also establishes a clear and accurate
precedent which will generate the right answer in future cases. Because the enterprise risk approach
does this much better than the ​Lister ​approach, it is to be preferred. Below we consider these two ways
of developing the test in more detail:

1. The enterprise risk justification

We know that this justification not only feels morally right (one ought to be held responsible for the risks
one creates) but also has an economic rationale (one ought to ‘internalize the externalities’ associated
with one’s enterprise so that one makes efficient decisions about whether and how to conduct that
enterprise). We can also supplement this justification with the importance of spreading risk (see
McLachlin J in ​Bazley)​ .

But there is a potential problem here: Do these rationales apply to charities? One might think that
because charities are trying to do good rather than greedily pursue profits they should not be forced to
pay for any risks associated with their enterprise. McLachlin J actually dealt with this criticism in ​Bazley​,
because the employer in that case was a charity. She said, basically, that this criticism was a misguided
emotional response: even if charities’ intention is broadly to do good, they must consider the costs
associated with each possible venture if they are to decide intelligently whether and how to do it; and
charities can deal with those costs by insuring and so on (just like businesses). Scott approves.

But Fagan has another, similar criticism. He argues that just because a risk has materialized to the
plaintiff’s detriment, it doesn’t follow that the enterprise which generated that risk should be forced to
bear the cost. To see why, he uses the example of a vaccine for blindness. Let’s say that without the
vaccine 1000 people would go blind. If everyone is given the vaccine, no-one will go blind through
natural causes but the side-effects of the vaccine itself will cause 10 people to go blind. The result is that
the vaccine will drastically diminish the risks of blindness for society at large. For that reason, argues
Fagan, the State should not be penalized for rolling out the vaccine by being held vicariously liable for
the costs to the 10 unfortunate people; the State ought not to be disincentivised from doing something
which is so clearly beneficial on the whole. The same logic applies to policemen and rape: by having
policemen, the risk of the society’s women being raped is drastically reduced; and so the State should
not be disincentivised from employing policemen by being held vicariously liable when a policeman rapes
a particular woman.

Scott says there is some force to this criticism, but responds provisionally by saying that it is still
desirable that the law helps the unfortunate women who are raped by policemen by spreading the costs
associated with the rape. In other words she just reasserts the risk spreading rationale.

2. Non-delegable duties
This was a concept applied tacitly in ​Lister,​ approved by the dissent in ​Chartaprops,​ and gestured at in
argument 1 of ​K.​ The idea is that there are circumstances when persons owe a duty of care which,
because of its nature, cannot be delegated. The result is that one is held ​strictly ​liable for breach of that
duty (i.e. regardless of whether one was at fault for the breach), but ​directly s​ o (i.e. it’s not that you are
being held vicariously liable for the breach of someone else’s duty; the duty breached was actually owed
by you).

The fact that the non-delegable duty concept has been used to hold employers liable suggests that some
judges are dissatisfied with using vicarious liability. Certainly, some academics have argued that
non-delegable duties are a better way of doing so. But if the non-delegable duty concept is to work
properly, we need to decide what circumstances create duties which are non-delegable. It has been
argued by academics that a duty is non-delegable when it is so far-reaching that it justifies strict liability.
In ​Bazley v Curry,​ for example, it might be said that the duty of care owed to those children was so
far-reaching that it could not be delegated. This argument has not gained any judicial support. But the
law already imposes strict liability in some cases, e.g. product liability, so this would simply be a new
category where the law does so.

Whatever the virtues of the ‘far-reaching’ test (see above), Scott argues that it simply wouldn’t work on
the facts of ​K​: there was not enough of a far-reaching and direct relationship of control to say that the
State could not delegate its duty. Of course, there could be other reasons for imposing a non-delegable
duty upon the State. If non-delegable duties are to be used instead of vicarious liability in such cases, we
will have to set out a clear and comprehensive set of rules or criteria to determine when a non-delegable
duty exists.
O​MISSIONS

1 Introduction
In this topic we consider liability under the ​lex Aquilia f​ or causing harm by ​not d
​ oing things. This is a
much more vexed issue than liability for causing harm by positively doing things.

There is a fault line running through this area of law which divides State and private entities; the position
is quite different, and more complicated, where the State is being held liable. We thus start with private
entities, where one can get a sense of the basic principles.

2 General principles of liability for omissions

Roman and Roman-Dutch law

Liability for omissions is a very old problem, which even Roman law had to deal with. The Digest gives
two examples:
1. A man lights a fire and falls asleep. While asleep, the fire rages out of control and causes damage
to a neighbour’s property. Is the man liable for his failure to actively intervene and control the fire?
Yes, because this is not a ‘pure omission’ or a ‘mere omission’; the man’s prior conduct in lighting the
fire generates a duty to control it. 2. A man does surgery on his slave and then fails to care for him
post-operatively. The slave gets an infection and dies. Is the man liable for his failure to care
positively for the slave? Yes, because by performing the operation the man assumed responsibility
for the consequences thereof.

The point about these examples is that they are exceptions to the general rule that one ought not to be
held liable for omissions.

One of the peculiarities of Aquilian liability is that it was barely developed between Roman times and the
19​th ​century. It is not clear why this is so, although some have said that it was only with the advent of
mechanization that accidental harms began to occur commonly.

The Roman-Dutch authorities did have something to say about it, though. Voet basically adopted the
Roman law position, viz. that liability was not normally attached to omissions. Grotius, by contrast, said
that morality required liability for ​all l​ oss culpably caused. This was a typical natural law attitude,
concerned more with moral principles than practical law.

Nevertheless, Grotius’s rule proved influential in continental Europe. Article 1382 of the French Civil
Code, in particular, basically repeats his rule. This has caused a lot of trouble for the filthy frogs, because
it casts the net of liability far too wide. In particular, it makes no distinction between positive and negative
conduct.
Grotius’s rule was also the fundamental (but not explicit) rule animating our
common-law.

English law

But before we get to that, we consider English law’s duty of care, which came to be influential in our law.
This duty was discussed in the landmark case of ​Donoghue v Stevenson ​[1932] AC 562​. A woman
found a snail in
her glass of ginger beer, causing bad shit. She tried to sue the manufacturer (she couldn’t sue the
shopkeeper in contract because her friend had bought the ginger beer). The House of Lords said that
she could sue the manufacturer because they owed her a duty of care. By introducing this generalized
concept of a duty of care, the Court was binding together all the disparate categories in terms of which
English law had until then imposed similar liability. To decide whether a duty of care was owed, the Lords
said that the ‘neighbour test’ was necessary:

You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour?
The answer seems to be -- persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions that are called in question.

In other words, one owes a duty of care to anyone to whom harm by one’s conduct is reasonably
foreseeable. This is a very wide concept, especially given the Court’s relying on the Biblical parable of
the Good Samaritan to explicate the rule. The Court says that the Good Samaritan was required to help
that guy who had been assailed by bandits because he could foresee the harm to him. But this is quite a
curious example to use, because the whole point of the parable was that the Samaritan helped the man
​ ave a prior duty to do so—the parable was meant to illustrate the virtue of going
even though he ​didn’t h
beyond ​the call of duty. In short, the Court uses an example of a mere omission to elucidate the rule,
which is obviously strange given the fact that normally there was no liability for (mere) omissions.

The modern English test for a duty of care was expressed in ​Caparo Industries PLC v Dickman [​ 1990]
2 AC 605​:

[I]n addition to the foreseeability of damage, necessary ingredients in any situation

giving rise to a duty of care are that there should exist between [the parties] a
relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that
the situation should be one in which the court considers it fair, just and reasonable that
the law should impose a duty ... on the one party for the benefit of the other.
So to establish a duty of care the plaintiff would have to
show:
1. proximity between himself and the defendant (which is established in turn by the reasonable
foreseeability test); and that 2. the imposition of liability upon the
defendant is fair, just and reasonable.

There are many cases where the duty of care is just assumed, for example in car accidents. But for
omissions cases, the plaintiff must do a lot of work to establish these elements.

Early 20th century South African law

See generally on this section Hutchison’s chapter in ​Southern

Cross.​

South African courts began to deal with the problem of omissions around 1900. The Roman law terms of
injuria ​and ​culpa ​were used by judges, but they were not well theorized. The ​Institutes 4.3.4 ​dealt with
an example where soldiers are practicing javelin in a field set aside for this purpose. A passing slave is
struck and killed by a javelin. Should the soldier be liable? No, according to the text, because the area
was specifically set aside for javelin practice. However, if it was some other place the soldier would be
liable. In modern South
African law, we would clearly explain the difference between these two cases as turning on
wrongfulness. But the Romans explained the distinction in terms of ​culpa​. This illustrates the fact the
Romans made no distinction between fault and wrongfulness—they simply had no wrongfulness
element, meaning that they had to explain the javelin cases in terms of fault. The early South African
cases, which drew directly upon Roman law, similarly had no developed concept of wrongfulness to limit
liability.

The result was that our courts gave some very generous decisions. For example, ​Fleming v Rietfontein
Deep Gold Mining Co 1 ​ 905 TS 111 ​concerned a man who had at night wandered off a public road and
fallen down a mineshaft. The mineshaft was on private property and was some distance from the public
road. Innes CJ nevertheless imposed liability on the basis of the negligence test (which turned on
reasonable foreseeability, as in English law), without any further enquiry.

Then there was the case of ​Farmer v Robinson Gold Mining Company Ltd ​1917 AD 501​. We know
the facts: children trespassed on mine property and one was very badly injured when the machinery
started up while he was playing on it. The question was whether the mining company could be held
liable. Innes considered the English decisions in this area, noting basically that there was no liability for
injuries to trespassers unless the injury was occasioned by a trap which was alluring to children. But
Innes CJ rejects English law, favouring instead the Roman-Dutch approach. He used the ​Digest 9 ​ .2.31
example about a man pruning a tree: Is he required to call out to warn anyone nearby of the falling
branches? The answer given by the text was that he would have to do so if the tree was on public land;
and even if the tree was on private land he would have to do so if the tree stood over a footpath. But he
would not have to call out if he was in the middle of nowhere in a private field. Innes interpreted these
outcomes as being reliant upon a general, underlying principle: one will be liable for injuries that were
reasonably foreseeable. The idea is that the man would have to call out when it is reasonably
foreseeable that the falling branch would actually injure somebody—which will be the case where people
are likely to be passing below (as on public land or a private footpath but not in a remote and uninhabited
field). Innes decides that this is the principle which our law must apply.

Is the Digest’s example appropriate? Scott says not really. The D 9.2.31 example is a commission,
whereas the facts of ​Farmer ​involved an omission (specifically the mining company omitted to take
certain steps to prevent the children from playing on the machines etc.). In this respect, says Scott, the
two cases are quite different. Because Innes CJ was drawing upon a commission example, he was
perhaps less reluctant to impose liability than if he’d stayed focussed on the facts ​in casu ​and on other
omissions cases (although on the facts the mining company was not held liable because even on the
broad reasonable foreseeability test it was not negligent). And perhaps this explains why Innes CJ took a
very different and more restrictive approach to omissions liability in ​Halliwell v Johannesburg
Municipal Council 1 ​ 912 AD 659​.

​ as the first of the so-called municipality cases. The judgment was delivered by Innes CJ and
Halliwell w
was contemporaneous with ​Farmer​, but surprisingly the approach taken was quite different. Halliwell had
been driving his cart on a cobbled road. His horse slipped because the cobbles had at one spot been
worn very smooth. He sued the municipality for the resulting loss, arguing that it had failed to maintain
the road adequately.

Unlike in ​Farmer​, Innes CJ was in this case very sensitive to the fact that this was an omission. Scott
suggests that accordingly this is a better account of his approach to omissions. Again he considers the
English law approach, in particular the distinction between nonfeasance and malfeasance (basically,
omissions and commissions). He then considered the Roman-Dutch tradition. He notes that liability for
omissions in the ​Digest w​ as occasioned by some prior positive conduct. On this basis, he set out to
determine whether the municipality had ​in casu c​ ommitted some prior act such as would found liability by
analogy to the Roman
cases. Innes held CJ that, indeed, by laying the cobbles the municipality had introduced a new danger by
prior positive conduct. On this basis he held the Municipality liable.

Scott notes that in this case the outcome was permissive but the underlying principles were restrictive.
(In ​Farmer i​ t was the reverse; the mining company was not liable but the animating principle was
extremely broad.) And in fact the ​Halliwell ​principle came to be understood as even more restrictive than
Innes (probably) intended: all he seemed to be saying was that prior conduct was a ​sufficient c​ ondition
for the imposition of liability for an omission, but it came to be understood that prior conduct was a
necessary c​ ondition for such liability. The rule extracted from the judgment was, specifically, that a
municipality cannot be held liable purely for a failure to repair; it can only be held liable if it has
introduced a new source of danger. Although Innes CJ was compelled to impose liability because the
municipality had introduced a new source of danger, there was no evidence that he meant to preclude
the imposition of liability in cases where there was no such introduction. But that is not the way the
judgment was interpreted, the result being, in short, that the only way one could in our law be held liable
for an omission was if one had performed prior positive conduct.

Innes’s dicta in the ​Halliwell ​case were heavily criticised by Tom Price (and also Van den Heever writing
extra- judicially), as follows:

1. the prior conduct doctrine is hard to apply, and thus causes arbitrary and unprincipled
reasoning

The ​Halliwell ​rule led judges in later cases to try and fish about for some prior conduct upon which they
could hang liability. Because the categorization of something as prior conduct is often difficult, the result
was judgments which were arbitrary or inconsistent with one another. For example, in ​Halliwell t​ he
municipality was held liable because its construction of the cobbled road was said to introduce a new
source of danger; but in ​Cape Town Municipality v Clohessy 1 ​ 922 AD 4​, the construction of a tar road
was said not to introduce any new source of danger, so that the plaintiff, who had stumbled and injured
herself after the road had degenerated, could get no relief.

Scott agrees with this criticism. But Price went even further and argued
that:

2. the omission/commission distinction is just plain wrong

This distinction, said Price, made no sense and was the ‘hallmark of a primitive legal system’. He argued
that we should simply return to the all-encompassing Roman concept of ​culpa ​to decide whether to
impose liability. He said:

...with a fully developed theory of c​ ulpa ​in delict there is no longer any room whatsoever
for the more primitive notion of i​ niuria​; it becomes an anachronism, and in so far as it
may continue to find a place it is an illogical survival.

Scott says that this is taking it too far: there is clearly a moral intuition that we share that says omissions
are not as culpable as commissions; and a legal system ought to match this intuition. It is very difficult to
argue that one should be held liable as easily and frequently for omissions as for commissions.
This was indeed one of the main points on which Price’s great rival, McKerron, disagreed with him. He
argued that the law of delict requires a further brake on liability, over and above ​culpa;​ otherwise liability
is imposed
too readily. In this, McKerron was influenced by English law, which employed the duty of care to provide
such a brake. Price, in obvious contrast, was influenced by the civil law tradition.

Mid-20th century: gradual liberalization

At this stage the law started to be more liberal and generous in omissions cases. As we said, prior
conduct was initially a necessary condition for omissions liability. But then the Appellate Division began
to liberate itself from this straitjacket.

In ​Silva’s Fishing Corporation (Pty) Ltd v Maweza 1 ​ 957 (2) SA 256 (A) ​one of the appellant
company’s boats suffered engine failure and drifted about on the sea for several days. The company
knew the boat was stranded but didn’t bother to try and rescue the crew. The boat eventually capsized in
a storm and the crew was killed. Maweza’s husband was one of the deceased, and she sued the
company for loss of support. The issue was whether it could be held liable for its failure to act. Schreiner
JA held that the company was liable. Ultimately he founded liability on the basis that, by employing the
crew to man its boat, the company had committed prior conduct which created a duty to act positively
when the boat proved to be defective. But it was clear from his other remarks that he favoured a flexible
approach, saying that a duty to rescue was not subject to special rules and might arise out of the
circumstances of the case.​4

From an historical point of view the real significance of the case was the bold minority judgment of Steyn
JA, who held that omissions liability might arise from a wide variety of circumstances, some of them
unconnected with prior conduct. What these circumstances were would depend upon ‘the conceptions
prevailing in a given community at a given time’.

Six years later, when Steyn had become Chief Justice, the Appellate Division gave judgment in ​Regal v
African Superslate (Pty) Ltd 1 ​ 963 (1) SA 102 (A)​. The two parties owned property abutting a common
river. Slate from the defendant’s property had washed downriver and caused damage to the plaintiff’s
land. The plaintiff therefore wanted an interdict to compel the defendant to build a filtration dam. The
difficulty was that the slate had actually accumulated on the defendant’s part of the river during the
​ wner. Thus all that the defendant could be held liable for was his failure to take
tenure of the ​previous o
positive steps to stop the slate washing downriver. Although the Court did not grant the interdict, this was
a very important case because it said that it was possible that in certain circumstances a person must
take ‘reasonably practicable’ positive steps to prevent harm to another—even if, as in this case, the harm
was not caused by that person. This finding was ​obiter ​(because the Court excused the defendant in this
case), but it significantly eroded the prior conduct doctrine and was therefore very influential. (And
because the Court stressed that the reasonable practicability of preventative measures was ​not t​ he same
as ​culpa,​ it appears that this judgment is the genesis of Neethling, Potgieter and Visser’s whack objective
reasonableness thing as a separate element of a delict.)

The next case was ​Minister of Forestry v Quathlamba 1 ​ 973 (3) SA 69 (A)​. There was a fire on the
defendant’s land which spread to the plaintiff’s land, causing damage. The Court approved Steyn JA’s
minority judgment in ​Maweza​. It went on to find that the defendant was under a legal duty to take steps
to prevent the fire from spreading:

4​
A lot of what I say here is taken verbatim from Hutchison’s chapter. It’s very lucid and interesting if you want more

detail—although only
​ isolated bits of it are actually relevant to this topic.
[T]he landowner is in control of the property which—albeit without fault on his
part—has, by reason of the fire burning upon it, become a potential hazard to others. In
such a situation there exists, in my opinion, a duty upon the landowner to act
reasonably in an endeavour to avoid foreseeable harm to others.

Again, this was contrary to the prior conduct doctrine; the defendant had not committed any prior positive
conduct, so effectively this case recognised a new category of omissions liability. Scott seems to regard
this as an instance of the ‘control of a dangerous situation’ justification for a positive legal duty and notes
that, as we will see later, this category of omissions liability has continuing significance for our law.

Wrongfulness as a separate criterion:

Ewels

Thus there was growing discontent in the case law with the prior conduct doctrine. But departures from
the doctrine were isolated and casuistic—no comprehensive approach had been established in its place,
and the prior conduct doctrine remained the point of departure. This changed with the watershed case of
Minister van Polisie v Ewels ​1975 (3) SA 590 (A)​. This case not only established once and for all a
new approach to omissions (which remains good law), but also fundamentally reshaped the law of delict
by clearly establishing wrongfulness as a separate element. The new approach to omissions is basically:
use the ​boni mores ​or legal convictions of the community to decide whether the omission was wrongful.

We know the facts: a policeman kicked the shit out of Ewels in a police station, while other policemen
stood and watched. Ewels argued that the idle colleagues were liable because of their failure to
intervene. The case allowed the Appellate Division to reject the prior conduct doctrine once and for all
and, more broadly, to reject the method of bringing omissions cases within the ‘stereotyped instances’
(prior conduct, control of a dangerous situation, etc.). (Nowadays ​Ewels c​ ould perhaps have been
decided using the ​K r​ easoning, but obviously in 1975 things were different.) The Court held as follows:

It appears that the stage of development has been reached wherein an omission is
regarded as unlawful conduct also when the circumstances of the case are of such a
nature that the omission not only excites moral indignation but also that the legal
convictions of the community demand that the omission should be considered wrongful
and that the loss suffered should be made good by the person who neglected to take
positive action.

No general rule could be laid down, said the Court, as to when the legal convictions of the community
demanded liability. In ​Ewels t​ he important factors were: the fact that the assault occurred in the police
station, over which the policemen had control; the general duty of the police to protect the public from
crime; the ease with which the assault could have been prevented or stopped; and the fact that one of
the bystanders held a rank equal to that of the assailant.

As we have said, the case was important for the whole of delict; the ​boni mores ​test now crops up all
over wrongfulness (in addition to omissions, it is used in cases of pure economic loss and negligent
misstatements). It also cements wrongfulness as a separate element, and thus marks the moment when
the views of the aforementioned Price get emphatically rejected by the courts.

Scott notes that the ​boni mores t​ est was drawn from Roman law; but in Roman times it was never
actually used for Aquilian liability. It was used only for ​injuria c​ ases (defamation, insults, etc.), which as
we know always dealt with intentional conduct. Therefore the Romans used the ​boni mores ​test to decide
whether a
person was ​entitled t​ o perform his intentional conduct; it is a kind of objective reasonableness enquiry.
For example, is it objectively reasonable for a man to intentionally shout at a woman walking across the
market square that he wants to take her home and bang her? The problem, though, is that when we
transplant the test into cases involving Aquilian liability—which include cases of ​uni​ ntentional
conduct—there is a danger that one ends up asking the same question twice. Remember, the
negligence test involves asking, essentially, whether the defendant acted reasonably (more particularly,
as a reasonable person in his position would’ve acted). But by introducing the ​boni mores o ​ r objective
reasonableness test into the wrongfulness enquiry we are left with two separate elements which are
very, very similar. This might lead to conceptual confusion, and indeed Scott says it has led to such
confusion in our case law.

Another more straightforward problem with the ​Ewels ​test is that it is extremely vague. We will see later
how successfully we can bring some clarity to it.
 Application to the municipality cases:
Bakkerud

Where does the ​Ewels ​test leave the municipality cases? Remember, there were a number of earlier
cases saying that municipalities were essentially immune from liability for omissions (without prior
conduct). It took a long time before a case arose which would decide whether and to what extent ​Ewels
impacted on this rule. The case finally came with ​Cape Town Municipality v Bakkerud 2 ​ 000 (3) SA
1049 (SCA)​. An old Jewish slut walked into a pothole in Sea Point and hurt her leg. The stingy bitch
didn’t want to pay her medical bills so she took the case all the way to the motherfucking SCA.

In the Cape High Court, Mr Binns-Ward appearing for the Municipality argued that even though ​Ewels
changed the general test for liability for omissions, the pre-existing immunity of municipalities should be
retained for policy reasons. Brand J (as he then was), writing for a full bench, held that the earlier
Appellate Division decisions granting the immunity were clearly not motivated by policy decisions—in
fact, many judges expressed sadness at the outcomes that the law generated.

Moreover, said Brand J, the immunity was clearly inconsistent with the current ‘legal convictions of the
community’ which require ‘municipalities to keep streets and pavements in a safe condition’. Obviously
this reasoning relies upon the ​Ewels ​test. Brand J also stated that the immunity was undesirable for
practical purposes, in that it introduced the finicky and ultimately arbitrary distinctions which had
characterised the early 20​th ​century law of omissions. Finally, Brand J said that if the municipality is given
an immunity we would need to accept that even in the most extreme cases it would not be liable. So, for
example, what if there was a very dangerous situation, the municipality knew about it, and could easily fix
it? Would we say the municipality ought to be immune from liability? Clearly not.

Binns-Ward countered by saying that in this extreme case there would then be extreme negligence, so
liability could be founded notwithstanding the immunity. But this got Brand even more hot: He seized on
this unwise statement and said that the circumstances of this extreme case are relevant to negligence,
not wrongfulness. In other words, Brand took the view that the liability of the municipality ought
fundamentally to be decided through fault, not wrongfulness. Wrongfulness was a given in such cases;
the important question was whether the municipality acted as a reasonable person would have.
Resource constraints and so on would then be factored into this reasonableness enquiry rather than in
the wrongfulness enquiry. Brand J’s finding that fault was the key in the municipality cases was a
particularly noteworthy aspect of his judgment. (Scott approves of his reasoning on this score, although
as we will see immediately below the SCA reached the same outcome by making wrongfulness do the
difficult work.)
Anyway, because Binns-Ward had all but conceded negligence and argued solely on the basis of
rebutting wrongfulness, this basically meant his case was fucked. As we saw, Brand J said that ​Ewels
meant ​Halliwell i​ s no longer applicable, and on application of the ​boni mores t​ est held that wrongfulness
was easily established. The difficulty is actually the fault enquiry, where we must consider all the tricky
things like the municipality’s resource constraints. On the facts, there was negligence in this case,
because the hole had been there for six months, it was in a busy area and on a focal part of the
pavement. The municipality was therefore liable (although the quantum of damages was offset due to
Mrs Bakkerud’s contributory negligence).

The SCA reached the same conclusion via a slightly different route. Marais JA looked at ​Halliwell
because, like Brand J before him, he had to decide whether the immunity stated therein continued to
apply. He formulated the immunity in a rather unfamiliar way, saying a municipality could be liable for an
omission only if there was prior conduct or it was under a statutory ​duty ​(as opposed to merely being
bestowed with a statutory ​power)​ to take positive action. Marais JA held that this immunity needed to be
​ nd more especially ​Ewels​.
revised in light of ​Regal a

An important difference from Brand J’s judgment was that wrongfulness was made to do the hard work,
rather than fault. Marais JA said that wrongfulness needs to be established anew in each case; the
plaintiff must bear the onus of establishing wrongfulness on the facts of his particular case. The plaintiff
must also establish fault—which will overlap with wrongfulness, but that’s okay. On the facts ​in casu,​
Marais JA held that both elements were established.

Fagan and Scott agree that Brand J’s reasoning is actually better than Marais JA’s: why would resource
constraints etc. be relevant to wrongfulness? It seems they are more suited to the fault enquiry.
Interestingly, the SCA might have come round to Brand J’s view: in the recent case of ​McIntosh v
Premier of the Province of KwaZulu-Natal and Another 2 ​ 008 (6) SA 1 (SCA) ​Scott JA applied Brand
J’s approach, i.e. he made negligence the focal point of the discussion of policy factors:

The crucial question, therefore, is the reasonableness or otherwise of the respondents’

conduct. This is the second leg of the negligence inquiry. Generally speaking, the
answer to the inquiry depends on a consideration of all the relevant circumstances and
involves a value judgment which is to be made by balancing various competing
considerations including such factors as the degree or extent of the risk created by the
actor’s conduct, the gravity of the possible consequences and the burden of eliminating
the risk of harm. ... Where, however, a public authority is involved a further
consideration arises. It is this; a court when determining the reasonableness or
otherwise of an authority’s conduct will in principle recognise the autonomy of the
authority to make decisions with regard to the exercise of its powers. Typically, a court
will not lightly find a public authority to have failed to act reasonably because it elected
to prioritize one demand on its possibly limited resources above another.

So the Court has very clearly indicated that regard will be had to the municipality’s resource constraints
and its right autonomously to exercise its functions in the negligence test, not the wrongfulness enquiry.
One might speculate that this approach, rather than ​Bakkerud​’s, will be applied in future.
 The modern approach to omissions
How, then, does modern South African law regard omissions? The starting point is Boberg’s
quote:

The forces of history and social policy maintain the distinction between positive and
negative conduct by viewing the latter more benevolently than the former.

So clearly there remains a substantial cleavage between commissions and

omissions.

Why are omissions treated differently? The most fundamental and important justification is that respect
for individual autonomy and the onerousness of imposing positive obligations means that the law will
generally not hold people liable for failing to act. While recognising the force of this justification, Scott
points out that it is much less compelling in cases involving the State, which is ​required ​to do take
positive steps to do certain things and provide certain services for us.

She says another important reason for treating omissions differently is the autonomy of the ​plaintiff​: we
must respect their agency and not infantilise them; we ought to bear in mind that it is the plaintiff who
acted positively so as to cause the harm, and should not be too quick to blame someone else for that.
Obviously at times it might be justified to hold someone else liable, but mindfulness of the plaintiff’s own
responsibility should be the starting point.

These are moral arguments. We are also concerned with policy arguments: If we had no distinction
between omissions and commissions, our legal system would be grossly overburdened with too much
litigation; if you could claim for someone’s not doing something the list of complaints would be endless.
And it would mean that the State would go bankrupt, because it is involved in so many things which
might render it liable.

Scott’s final thought on this is that South African law is fundamentally premised on very individualistic,
laissez faire ​principles, typical of most modern Western legal systems. We must recognise that these are
mutable, culturally specific norms and interrogate them—is this really a desirable state of affairs, or
would it be better if we could return to a more communitarian, altruistic ethos?

But so much for this philosophical wankery. How do we actually determine as a matter of law whether a
defendant is liable for an omission? Scott is very fond of pointing out that the stereotyped cases (prior
conduct, special relationship, etc.) are still relevant, although they are no longer decisive. The point is
that if you can bring the defendant’s conduct within a stereotyped instance you can ‘shortcut’ the enquiry
and establish wrongfulness relatively easily. But, of course, ​Ewels ​makes very clear that you can found
liability even without the existence of a stereotyped case. To do that, you must pass the ​Ewels boni
mores ​test and perhaps drop some hot policy arguments.

3 The liability of the State

Introduction

The basic principles have just been stated, but things are fairly different when the defendant is a State
entity. (Are municipalities State entities? It’s really not clear; we’d have to think about whether the
Carmichele ​logic would apply.) To investigate the liability of the State, we look at the ​Carmichele
judgments and ​Van Duivenboden,​ which was heard in the middle of the ​Carmichele ​litigation. There were
four relevant ​Carmichele ​judgments:
Carmichele 1:​ in 2001 the SCA upheld the absolution from the instance ​Carmichele 2​: the CC
overturned the SCA’s granting absolution, and remitted the matter to the CPD ​Carmichele 3:​ the
CPD heard the matter again, with the law having been developed by the CC ​Carmichele 4:​ the
SCA heard the matter on appeal from the CPD

Van Duivenboden ​was handed down between ​Carmichele 2 ​and ​3​. It actually did most of the heavy
analytical work, and is therefore the case we will spend most time on.

Carmichele

The facts of ​Carmichele a ​ re as follows. Ms Carmichele lived in Noetzie, a small beach-side community
near Knysna. Coetzee, the villain of the piece, knew Carmichele because his mother worked for
Carmichele’s friend. Coetzee had attacked a certain Ms Terreblanche one night while he was walking her
home from a dance. He had beaten her, possibly raped her, and left her for dead. He immediately went
to the police to turn himself in, saying he had been aware of what he was doing while he attacked her but
didn’t know why he did it; it was as if demon forces had possessed him. He was charged with rape and
released on bail. Bail was not opposed by the State prosecutors even though the docket noted a prior
conviction for indecent assault. Later, Coetzee’s mother told the police that her son was cooked in the
head and she was scared he would commit suicide or ‘get up to something’. In fact he then did
unsuccessfully attempt suicide, after which he was sent to Valkenberg by the police for a psychiatric
assessment. The doctors said he was sane at the time of the alleged rape of Ms Terreblanche and was
fit to stand trial. There was no report on whether he was fit to remain in society—as we will see, it is not
clear whether the Criminal Procedure Act would’ve allowed for him to be incarcerated on the basis of a
psychiatric assessment. Coetzee was later caught snooping around Carmichele’s friend’s house, where
Carmichele was staying. She went to the police, who said they could do nothing because Coetzee was
entitled to be on the property (since his mother worked for the homeowner). Shortly thereafter Coetzee
violently attacked Carmichele in that house, injuring her very severely. She sued the State in the High
Court for its failure to take adequate steps to protect her.

The CPD granted absolution from the instance—holding, in other words, that the plaintiff’s claim had no
chance of succeeding and must therefore be summarily rejected. On appeal to the SCA, Vivier JA’s
judgment ran as follows. Firstly, he made some factual findings additional to those stated by the CPD. He
said that even if the prosecutors had drawn all the relevant facts to the presiding magistrate’s attention,
he still would have granted bail. He said also that there was no legal mechanism by which Coetzee could
have been imprisoned after his psychiatric evaluation. And finally he said that Coetzee couldn’t have
been rearrested after the snooping incident because he was not trespassing. The only conduct upon
which the plaintiff could possibly found liability, therefore, was the prosecutor’s refusal to oppose bail.

Secondly, Vivier JA applied what he said was the wrongfulness test. He asked: Did the defendant take
reasonable positive steps to prevent harm to the plaintiff? (This is an appallingly shit statement of the
wrongfulness test, as we will see below.) The judge stated that although a prosecutor is under a duty to
oppose bail in appropriate circumstances, it does not necessarily follow that it is ​wrongful f​ or him not to
do so. So then the judge asks whether there was a special relationship in this particular case which might
justify a finding of wrongfulness. In this regard he relied on the judgment of the House of Lords in ​Hill v
Chief Constable of West Yorkshire ​[1989] AC 53​. In that case the mother of a victim of a serial killer
had sued the police for its allegedly negligent failure to catch the killer earlier and thus prevent her
daughter’s death. The House of Lords had struck out the case, saying that there was no special
relationship between the State and that particular victim such as could found liability. Vivier JA applied
this reasoning, saying Ms Carmichele was not uniquely at
risk and no duty was owed specifically to her. For these reasons, the SCA upheld the High Court’s
granting absolution from the instance.

There are two major problems with the SCA’s decision. Firstly, it conflates wrongfulness and fault in an
embarrassingly obvious way. You can see this in the wrongfulness test which Vivier JA states, which
clearly uses the negligence criteria. The result is that the judge says ‘wrongfulness’ when he means
‘negligence’, and this is the ultimate genesis of the jurisdictional problems arising when the matter went
to the Constitutional Court (this is not relevant to us, but you can read Fagan’s article for more).
Secondly, Vivier JA simply misunderstood the common law as it relates to the application of the
wrongfulness test. He seemed to think that only a special relationship could justify liability for
omissions—he applies the ​Hill ​reasoning and then seems to think the wrongfulness enquiry is over. But
​ as greatly expanded the wrongfulness enquiry. So Scott
this is obviously total horseshit because ​Ewels h
says this is just a bad decision, even ignoring what the Constitutional Court says about it (viz. that it
doesn’t pay enough attention to constitutional values); it even gets the common-law principles
disgracefully confused.

Carmichele 2​, the judgment handed down by the CC after it heard the matter on appeal, is more relevant
to delict generally than to the specific issue of omissions. It was also dealt with in the tutorial and in
Fagan’s article. Therefore we won’t cover it in much detail.
Carmichele’s counsel argued that the State owed a duty to uphold and protect her constitutional rights
(contained in the Interim Constitution, as that was in force at the relevant times), e.g. dignity and security
of the person. The Court agreed, emphasizing in particular the duty of the State to protect women from
violence. It also said that courts have an obligation under s 39(2) to develop the common law in light of
the spirit, purport and objects of the Bill of Rights. The SCA, it said, had failed to meet this obligation. It
was held that if the SCA had met its constitutional obligation it might’ve found that the failure to oppose
bail could be wrongful. The Court also stressed that the European Convention on Human Rights requires
the State to take positive steps to uphold and protect human rights. The Court therefore upheld the
appeal, refusing to grant absolution from the instance. It remitted the matter to the CPD to reconsider the
case with due regard this time of the Bill of Rights.

Van Duivenboden

Turning now to ​Minister of Safety and Security v Van Duivenboden [​ 2002] ZASCA 79​, which was the
next relevant judgment handed down: Mr Brooks liked guns and he liked alcohol. One day he got fucked
and threatened to shoot his wife, Dawn, and their children. Lots of police came to the scene, including a
superintendent. They interviewed him and took away his gun, but gave it back the next day. Later, Dawn
went to child protection services and laid a charge against Mr Brooks. She also at one stage went to the
police and asked them, in light of his alcoholism, to take away Mr Brooks’s gun. The police said that
before they could do this she had to institute s 11 proceedings (in terms of the relevant gun control
legislation), but she declined to do so. She also went to another police station, where they said she must
lay a charge or their hands were tied. Again, she refused because she thought it would be bad for her
marriage. Sometime later Mr Brooks went on a rampage, killing his children and chasing his wife into the
street. He shot Mr van Duivenboden, who had tried to intervene. He sued the police for their failure to
take adequate steps to relieve Mr Brooks of his gun.
In his judgment, Nugent JA showed awareness of the distinction between fault and wrongfulness—unlike
​ in laying out the basic delictual elements at issue:​5
Vivier JA in ​Carmichele—

Negligence, as it is understood in our law, is not inherently unlawful – it is unlawful, and

thus actionable, only if it occurs in circumstances that the law recognizes as making it
unlawful. Where the negligence manifests itself in a positive act that causes physical
harm it is presumed to be unlawful, but that is not so in the case of a negligent
omission. A negligent omission is unlawful only if it occurs in circumstances that the law
regards as sufficient to give rise to a legal duty to avoid negligently causing harm. It is
important to keep that concept quite separate from the concept of fault.

He then discusses at length and with numerous references to foreign law the issue of wrongfulness, or,
equivalently, the concept of a legal duty. He concludes by saying that in South African law wrongfulness
is determined by application of ​Ewels​’s ​boni mores t​ est and that the ​boni mores ​must be informed by
South Africa’s unique norms and values, which are now to be located in the Constitution:
 In ​Minister van Polisie v Ewels ​it was held by this Court that a negligent omission will be
regarded as unlawful conduct when the circumstances of the case are of such a nature
that the omission not only evokes moral indignation but the ‘legal convictions of the
community’ require that it should be regarded as unlawful. Subsequent decisions have
reiterated that the enquiry in that regard is a broad one in which all the relevant

circumstances must be brought to account. ​... ​In applying the test that was formulated

in ​Minister van Polisie v Ewels ​the ‘convictions of the

​ community’ must necessarily now
be informed by the norms and values of our society as they have been embodied in the
1996 Constitution. The Constitution is the supreme law, and no norms or values that
are inconsistent with it can have legal validity - which has the effect of making the
Constitution a system of objective, normative values for legal purposes.

He attributes the underlined rule to the Constitutional Court in ​Carmichele​, but clearly this is a much
weaker principle than the CC actually laid down—the CC had made the much stronger claim that ‘where
the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an
obligation to develop it by removing that deviation.’ Did we really need all the CC’s radical claims to
arrive at Nugent JA’s relatively uncontroversial principle? Was Fagan wasting his time taking issue with
the CC’s reasoning when its conclusion had in any case been interpreted with such moderation?

Anyway, in applying the wrongfulness test to the facts, Nugent JA gives a lucid discussion on liability for
omissions. He makes some useful general comments about the presumption against omissions liability
for private persons, and points out that that presumption is much weaker when the State is involved:

The reluctance to impose liability for omissions is often informed by a l​ aissez faire
concept of liberty that recognizes that individuals are entitled to ‘mind their own
business’ even when they might reasonably be expected to avert harm, and by the
inequality of imposing liability on one person who fails to act when there are others who
might equally be faulted. The protection that is afforded by the Bill of Rights to equality,
and to personal freedom, and to

5 ​
Throughout this case discussion I include way, way more quotations than Scott did. I did so because Nugent JA lucidly and

succinctly summarises
​ basically this entire topic—the basic principles of omissions liability and then the complications which
arise when the State is involved—so I felt quotations from the judgment would be very useful. Hopefully you do not feel that I’ve
overdone it ☺
privacy, might now bolster that inhibition against imposing legal duties on private
citizens. However, those barriers are less formidable where the conduct of a public
authority or a public functionary is in issue, for it is usually the very business of a public
authority or functionary to serve the interests of others, and its duty to do so will
 differentiate it from others who similarly fail to act to avert harm. The imposition of legal
duties on public authorities and functionaries is inhibited instead by the perceived utility
of permitting them the freedom to provide public services without the chilling effect of
the threat of litigation if they happen to act negligently and the spectre of limitless
liability. That last consideration ought not to be unduly exaggerated, however, bearing
in mind that the requirements for establishing negligence, and a legally causative link,
provide considerable practical scope for harnessing liability within acceptable bounds.

So although the presumption is weaker when the State is involved, there are policy reasons in favour of
insulating the State, especially the need to promote effective governance free from the spectre of liability.
But ultimately the courts must have regard to the Constitution, which clearly requires the State to take
positive steps to protect the rights of its citizens. This comes through in s 2, s 7 and especially s 41(1),
which provides for the norm of accountability: the State must be held accountable for any failures in its
governance. While America’s due process clause places severe restrictions on the State’s liability, our
constitutional order envisages something quite different:

[I]n this country the state has a positive constitutional duty to act in the protection of the
rights in the Bill of Rights. The very existence of that duty necessarily implies
accountability and s 41(1) furthermore provides expressly that all spheres of
government and all organs of state within such sphere must provide government that is
not only effective, transparent and coherent, but also government that is accountable.

​
... Where the conduct of the state, as represented by the persons who perform

functions on its behalf,

​ is in conflict with its constitutional duty to protect rights in the Bill
of Rights in my view the norm of accountability must necessarily assume an important
role in determining whether a legal duty ought to be recognized in any particular case.

Scott notes that the recognition of this norm of accountability represents a very strong push towards
holding the State liable. (She says this is a good thing, although Fagan appears to disagree.) But,
continues Nugent JA, if there are good reasons not to impose liability a court may not do so, in spite of
the norm of accountability:

The norm of accountability, however, need not always translate constitutional duties
into private law duties enforceable by an action for damages, for there will be cases in
which other appropriate remedies are available for holding the state to account. Where
the conduct in issue relates to questions of state policy, or where it affects a broad and
indeterminate segment of society, constitutional accountability might at times be
appropriately secured through the political process, or through one of the variety of
other remedies that the courts are capable of granting.

So, once again, Nugent JA says the presumption against omissions liability is weaker where the State is
involved, but then immediately points to certain considerations unique to the State which actually militate
against holding the State liable.
Nevertheless, he finds that in this case there are no such offsetting policy reasons. All the police needed
to do was institute s 11 proceedings by means of an affidavit. It was simply false that Dawn had to do it.
Thus to avoid the harm to the plaintiff the police simply had to be minimally competent; no resource
constraints or resource allocation decisions were at issue.

Having thus established wrongfulness, he applies the routine ​Kruger v Coetzee t​ est for negligence. He
says there was negligence because the police knew Mr Brooks’s history, and a reasonable person
apprised of that history would have taken further steps to prevent any harm occurring. Causation was
also clearly satisfied, he said, because without the gun Mr Brooks could not have shot van Duivenboden.
(He didn’t really interrogate the legal causation issue.) Ultimately, then, Nugent JA held the State liable.

Marais JA, who had delivered the ​Bakkerud ​judgment, gave an intriguing concurring judgment in which
he reached the same conclusion as Nugent JA upon application of the ​Ewels ​test without any
constitutional development:

I doubt that the accountability of which s 41(1)(c) of the Constitution speaks ... can be
regarded as ​prima facie ​synonymous with liability under the ​lex Aquilia ​for damages for
omissions to act. I accept that in a given case the accountability requirement may
prompt a finding that there is liability for a negligent omission to act but I would prefer
not to elevate accountability to the status of a factor giving rise to something akin to a
rebuttable presumption of liability to pay damages under the l​ ex Aquilia​.
Generalisations of that kind may result in consequences which were never intended
when applied to other situations. The circumstances of this case do not call for
generalisation sourced in either of the Constitutions and, for my part, I shall avoid it.

Scott likes Nugent JA’s decision, saying it does a good job of the task basically assigned to the SCA by
the CC in ​Carmichele 2 ​(namely to develop State liability for omissions in light of the Constitution) and
keeps wrongfulness and fault separate. But it is important to note just how strong the facts of ​Van
Duivenboden w ​ ere: the police had plenty of information about the risks which Mr Brooks was posing; and
they could have eliminated those risks with minimal effort and without using any extra resources. We
now turn to ​Carmichele ​again, where the facts are much more equivocal.

The implications of ​Van Duivenboden f​ or

Carmichele

So when ​Carmichele 4 ​came before the SCA (once again on appeal from the CPD), the Court had ​Van
Duivenboden t​ o rely on. As we said, ​Van Duivenboden ​did most of the tough analytical work, which now
had simply to be applied.
Harms JA’s factual findings largely confirmed what Vivier JA had said in ​Carmichele 1:​ the Criminal
Procedure Act did not allow for Coetzee to be imprisoned or institutionalized after his evaluation at
Valkenberg, and he also couldn’t have been taken into custody after the snooping incident; and therefore
the only relevant incident was the failure by the investigating officer (Hugo) and the senior prosecutor
(Louw) to oppose bail.

As to the legal reasoning, Harms JA accepted the CC’s reasoning in ​Carmichele 2 ​and applied the ​Van
Duivenboden t​ est. He considered the important norm of accountability which had been stressed in ​Van
Duivenboden,​ and said that proximity or a special relationship was irrelevant (thus he was rejecting what
Vivier JA had said in ​Carmichele 1)​ . He considered certain policy arguments in light of the particular
facts. Firstly, he rejected counsel’s argument that Hugo and Louw had made a reasonable error of
judgment in the exercise of
their discretion, and that a merely incorrect exercise of a discretion cannot be considered wrongful. The
reason for his rejection was that Hugo and Louw had simply rubberstamped the junior prosecutor’s
decision, and thus could not be said to have been exercising any discretion. In these circumstances, said
Harms JA, policy did not demand that the Court defer to the prosecutor’s decision. Secondly, Harms JA
rejected the argument that there was no special relationship between the State and Ms Carmichele such
as could justify a legal duty. In this regard, he pointed out that: the State has a special constitutional duty
to protect women; Ms Carmichele was a member of the very small Noetzie community whose members
Hugo and Louw had to protect; she was a particularly vulnerable member of that community; and a
reasonable person would in the circumstances have foreseen that she was at risk of harm by Coetzee.

Scott says this latter series of propositions does not properly justify Harms JA’s rejection of the relevant
policy arguments. He approved the ​Van Duivenboden r​ easoning to the effect that the autonomy of public
bodies, the resource-allocation decisions with which they are faced, and the possible ineffectiveness of
using delictual remedies against the State may all compel the non-imposition of liability. But the
arguments which he then advances (which essentially relate to the proximity between the parties) do not
actually confront these issues.

Anyway, wrongfulness thus having been established, Harms JA turned to the negligence enquiry. He
used the standard ​Kruger v Coetzee t​ est, and emphasized the irrationality of the decision not to put
evidence of the prior conviction before the magistrate. Counsel argued that magistrates were at that
stage (just after 1994) in the habit of almost invariably granting bail, so it wouldn’t have been reasonable
for the prosecutors to waste their time assembling evidence which would anyway be ignored by the
magistrate. Harms JA summarily rejected this argument, saying magistrates were not so close-minded
that prosecutors oughtn’t reasonably to bother doing something as simple as noting the accused’s prior
convictions.

Indeed, in the causation inquiry Harms JA said that the magistrate ​would ​have refused bail if he’d had all
the evidence before him. This established factual causation (Louw’s failure to put such evidence before
the magistrate was a necessary condition for Ms Carmichele’s being attacked). Legal causation was
never challenged by the appellants so the lower court’s affirmative finding was simply upheld.

Comments

Scott’s comments on this decision are as follows. Firstly, although Fagan says Harms JA understood the
wrongfulness/fault distinction properly, she says that although his understanding is certainly better than
Vivier JA’s, it is not crystal clear. Secondly, and much more importantly, Scott says that Harms JA
might’ve applied ​Van Duivenboden ​too mechanically: these were very different facts, and even if ​Van
Duivenboden’​ s development of the law was correct a lot of careful thought needed to go into how to
apply it to these different facts. In ​Van Duivenboden,​ as we have noted repeatedly, it was very easy and
straightforward for the police to do what was required to take way Mr Brooks’s gun; it was simple
laziness and incompetence that prevented them from doing so. But in ​Carmichele ​there were relatively
complicated discretionary decisions involved with resource-allocation implications. And, as already
stated, Harms JA failed properly to deal with the policy issues which these facts raise.

Note that in both ​Carmichele a ​ nd ​Van Duivenboden t​ he State was being held vicariously liable: it was
certain State employees, rather than the State itself, who had committed the delict. We know from the
vicarious liability topic that the only rights and duties which ought to be at issue in such cases are those
between the employee and the plaintiff; any duties owed to the plaintiff by the State could never be
relevant to the question of whether the employee had committed a delict against the plaintiff. However,
the courts again conflated the difference between vicarious and direct liability and considered the State’s
duties.
Moreover, we know that in order to hold the State vicariously liable it has to be the case that the
employee in question committed a delict against the plaintiff. This, in particular, requires it to be the case
that the employee’s negligent conduct was ​wrongful.​ But, because of the point we made in the above
paragraph (namely that the State’s duties are being in the wrongfulness enquiry), whether or not the
employee’s conduct was wrongful—and thus whether he committed a delict—depends on the content of
the State’s duties to the plaintiff. The result is that whether or not the employee has committed a delict
may be decided by factors that have nothing to do with the employee’s conduct or whether that conduct
was reasonable. In fact, let us imagine that X performed some act in some set of circumstances while
working for a private employer, and that that act did not constitute a delict. It is possible that if X
performed precisely that same act in the same set of circumstances except that now he was working for
the State, he will have committed a delict. This is because X is, in the second scenario, being used as a
mere instrument to hold the State liable in accordance with the ​Van Duivenboden ​and ​Carmichele
reasoning: because the State has stronger duties to the plaintiff than a private employer, X’s conduct is
now, for that reason alone, being branded as a delict. Fagan snidely points out that using X in this way,
as a mere means to an end, fails to respect his dignity—which is contrary to the Constitutional Court’s
constant masturbating at the altar of dignity. Interestingly, Marais JA actually seemed sensitive to this
problem way back when he delivered his dissent in ​Van Duivenboden​:
 [I]t is usually the omissions of individual functionaries of the State which render it
potentially liable. If one is minded to hold the State liable, one will at the same time be
holding the individual functionary liable. That he or she may never be called upon to
pay is not a good reason for ignoring the concomitant personal liability which will be
inherent in finding the State liable. That does not mean of course that the spectre of
personal liability should be allowed to paralyse a court when it is considering whether to
recognise that a legal duty to act exists. It is simply a reminder that more is at stake
than imposing liability upon an amorphous entity such as the State.

Scott’s final criticism is that vicarious liability is just badly suited to holding the State liable, because there
is often no single employee who has committed a delict; it is rather a systemic or institutional failure by
the State at large. ​Van Duivenboden w ​ as relatively easy because there was a single, on-duty policeman
who should’ve instituted s 11 proceedings rather than give Dawn incorrect and dismissive advice. But in
Carmichele​, there was a systemic and multi-faceted failure by the State, involving numerous people and
entities: the investigating officer should’ve made sure the junior prosecutor included Coetzee’s earlier
conviction in his report; the junior prosecutor should’ve decided to oppose bail; the senior prosecutor
should’ve amended his decision when his junior did not oppose bail; the legislature should’ve given
powers in the Criminal Procedure Act to allow criminally insane persons to be detained; and so on. Scott
says it would be much better to use direct liability against the State at large, regarding the employees as
mere ‘hands’ of the State. This would avoid all these problems.

To emphasize: There are two options by which to hold the State liable: direct liability for its own breach of
duty or vicarious liability based on its employees’ delicts. Direct liability is difficult to impose for historical
reasons, because of the difficulty of holding the State liable for omissions. But if we go the vicarious
liability route everything gets fucked up because the ​State’s duties ​(especially their constitutional duties)
are being used for ​wrongfulness​, but the ​employees’ conduct ​is being used for ​fault.​ These are
fundamentally separate issues but they are being elided. The result is Fagan’s instrumentalization
problem: the employees’ duties are being stretched and distorted and used as an instrument in order to
generate the correct outcome with regard to the State’s liability.
P​URE ECONOMIC
LOSS

1 Introduction

The basic concept

Pure economic loss is financial loss with no accompanying damage to property or person. The classic
case of this is where a bulldozer negligently severs an underground power cable on the land of person A,
causing a power failure in the factory of B. The loss of profit caused to B in having his factory shut down
is pure economic loss. It’s not that the consequential loss is ​distant ​from the wrongdoing; it’s that there
was no physical harm to the plaintiff’s person or property whatsoever.

The reason pure economic loss is tricky is that the ​lex Aquilia (​ which of course forms the basis of our law
of delict) traditionally protects only bodily integrity (​corpus​) and real rights (and certain narrow extensions
thereof). In other words, damage to person or property is a precondition for liability under the ​lex Aquilia.​
If you are seeking to impose liability for financial loss caused without such damage (i.e. for pure
economic loss), you face certain extra hurdles.

Conceptual justification

The basic reasons why the law is wary of imposing liability for pure economic loss, or why it is treated
differently, are:

1. Limitless liability a.k.a. the floodgates risk. The root of the problem is that pure economic loss is
not constrained by the precondition that some sort of ​physical d ​ amage has occurred. Without this
brake on or precondition for liability, there is the ‘danger of liability in an indeterminate amount for an
indeterminate time to an indeterminate class’ (as was memorably said by Cardozo CJ ​in ​Ultramares
Corporation v Touche ​174 N.E. 441 (1931)​). In other words, if you allow pure economic loss there
is no end to how far liability would stretch, and no way of limiting the possible plaintiffs.

2. Wide or disproportionate liability. This is a related problem: if a minor error can lead to limitless
liability, then the wrongdoer could have to pay a disproportionate and unfair
price.

History

But the special treatment of pure economic loss is also a matter of historical principle, in that it was
traditionally not regarded as actionable in delict. The Romans required that there be a violation of the
plaintiff’s rights before he could claim (so economic loss was not sufficient, although it was necessary).
The ​Digest 9.2.27 ​provides one example showing this:

[I]f someone castrates your slave-boy and thus increases his value, Vivianus writes that
the lex Aquilia should not apply...6​

6 ​
If you care about understanding this quotation rather than just ignoring or parrot-learning it, then you might have two questions:
(1) Why
​ would castrating a slave increase his value? and (2) If his value has ​increased​, why would this ​ever b
​ e actionable under
the ​lex Aquilia (​ which is always said to require consequential loss)? The answer to (1) is: by surviving what was then a very
dangerous
And ​9.2.21 ​states:

If a man knocks coins out of my hand, Sabinus thinks that there is an action for
wrongful damage if they roll away and thus do not come into someone else’s hands, if,
for example, they fall into a river or the sea or into a drain. But if they come into
someone else’s possession, an action for aiding and abetting theft may be brought.

This second example shows that the Romans were willing to impose liability when there was not as such
​ ith person or property. But they
damage to person or property, provided there was at least ​interference w
were not willing to go any further than that.

This remained the position throughout Roman-Dutch law. And in fact English law was also sceptical of
liability for pure economic loss. Therefore our own conservative attitude to pure economic loss is
buttressed in two separate traditions. The position in our law is, in short: pure economic loss is
recoverable sometimes but ​prima facie ​it is not recoverable. Therefore the plaintiff must convince the
court that it ought to be recoverable via arguments based in the element of wrongfulness. There are
many examples of the approach; see e.g. ​Knop v Johannesburg City Council 1 ​ 995 (2) SA 1 (A) 27​.

The relevant factors in brief

The following factors are determinative of wrongfulness in this context (they are similar to those relevant
to omissions):

1. Whether the defendant intended the harm: there is a moral justification for imposing liability if the
harm was intentional, but also a policy one in that it avoids limitless
liability.

2. Whether there was a special relationship between the parties: just like in omissions, liability will be
more readily imposed if there is a relationship of trust or dependency, a fiduciary relationship, or an
employment relationship between the parties.

3. Whether the defendant professed special skills or knowledge which the plaintiff did not
share.

4. Whether the plaintiff could have guarded against the loss by some other means, especially by
 insurance or some contractual arrangement.

​ ill not lead to the danger of limitless

5. Whether the plaintiff can show that imposing liability ​in casu w
liability.

6. Whether the plaintiff can show that the defendant could have easily prevented the
loss.

operation he would show his toughness; he would be a better singer; and he could be used to guard your women without any
fear that he would rape them. The answer to (2) is: Claims under the ​lex Aquilia d ​ id not, in early Roman times, require proof of
consequential loss. (This requirement only emerged much later.) The ​lex Aquilia ​was initially punitive and applied to any insulting
conduct, regardless of whether loss was caused thereby. Therefore the fact that Vivianus said the ​lex Aquilia ​didn’t apply here
could be taken to mean that it didn’t apply because ​your r​ ights were not infringed.
If the plaintiff can show 5 or 6 then basically he has shown that the major policy considerations militating
against liability do not apply ​in casu.​ We will encounter all of these factors in more detail later.

The subcategories in brief

In South African law, much like in English law, we have developed certain subcategories to give more
content to the above. We set these out briefly here:

Category 1: relational economic loss

This is when there is harm to the property or person of A which causes economic loss to B. This category
was first articulated in 1991 by the Canadian writer ​Feldthusen​, and all Commonwealth jurisdictions
have accepted that it is useful to put these cases into one category. The classic example of relational
economic loss is provided by ​Weller v Foot & Mouth Disease Research Institute ​[1966] 1 QB 569​:
The Institute, in the course of its research, released the foot and mouth virus into an area of Britain,
whose cattle trade had to be temporarily shut down as a result. Weller, a cattle auctioneer, sued the
Institute for the loss of profit caused to him.

Category 2: breach of contract

Sometimes pure economic loss is caused by a breach of contract, especially a contract for the provision
of a professional service (by e.g. a lawyer or auditor). The hard cases are when the breach of a contract
with A causes loss to B.
Category 3: negligent misstatement

This overlaps with category 2: a lawyer may, for example, give negligent legal advice to a client which
causes loss. The genesis of this category is ​Hedley Byrne & Co v Heller & Partners Ltd ​[1964] AC
465; [1963] 2 All ER 575​, a decision of the House of Lords which has been very influential in all
Commonwealth jurisdictions.

Now we look at these categories in more

detail:

2 Relational economic loss

The basic, conservative position

In ​Union Government v Ocean Accident & Guarantee Corporation Ltd 1 ​ 956 (1) SA 577 (A) ​a
magistrate was injured when his taxi driver, in the employ of the defendant company, caused an
accident. While he took off work recuperating the Government was without his services but had to
continue to pay him. It therefore sued the defendant for the loss.

In Roman law, a ​paterfamilias (​ head of the family) could sue a person who had physically injured his son
and thus caused him temporarily to lose his son’s labour. This was a species of relational economic loss,
​ as claiming for harm to another’s person. One could also claim for an injury to
in that the ​paterfamilias w
one’s slave. Roman-Dutch law had, by analogy to the Roman law position, allowed a claim for the loss of
labour of a
servant (the modern equivalent of a slave). The Government in our case sought to exploit these
developments by arguing that they were entitled to recover for the injury to their employee.

Schreiner JA was rightly sceptical of this reasoning, saying that there was no evidence that the
authorities permitted any ​further ​extension of liability. And, he said, neither English law nor the
Continental legal systems (with the exception of Germany) would permit the plaintiff’s claim. The primary
focus, though, was on Roman- Dutch law which, he said, allowed recovery of relational economic loss for
modernized slaves without extending liability any further.

Thus Schreiner JA dismissed the argument from authority. The Government also tried to argue that all
loss wrongfully caused is recoverable. However, Schreiner JA said that although we have an elastic
concept of liability it needs to be developed in a systematic and practical way. He uses the duty of care
concept to put a brake on such development:
 The expression 'duty of care' has sometimes been criticised as introducing an
unnecessary complication into the law of negligence, but, apart from the fact that it is
endorsed by considerable authority in this Court, it is so convenient a way of saying
that it is the plaintiff himself and no other, whose right must have been invaded by the
careless defendant, that the complication seems rather to be introduced by the effort to
avoid its use.

Schreiner JA went on to make two important policy arguments justifying his rejection of the plaintiff’s
claim: Firstly, he makes the standard floodgates argument (with some examples). Secondly, he says that
it is not unfair to deny the Government’s claim because they could have guarded against the loss simply
by stating in the magistrate’s contract of employment that they will not remunerate him if he is off work
recuperating from physical harm caused by the delict of another. (Both of these arguments were on our
‘Relevant factors’ list above.)

Scott approves of this decision. She also points out that Schreiner JA’s approving remarks about the duty
of care are significant in the context of the aforementioned battle between Price and McKerron: the use
of the duty of care as a brake on liability is a clear affirmation of McKerron’s view. Nevertheless, Price
argues the case could’ve been decided simply by saying that the defendant did not ​cause t​ he loss,
because the true cause was the Government’s arranging its contractual affairs such that it had to keep
paying the recuperating magistrate.

So ​Union Government ​restricted liability for relational economic loss quite substantially. This approach
was subsequently followed in ​Shell and BP South African Petroleum Refineries (Pty) Ltd and Others
v Osborne Panama S ​ A 1980 (3) SA 653 (D) ​and ​Franschhoekse Wynkelders (Ko-operatief) Bpk v
South African Railways and Harbours ​1981 (3) SA 36 (C)​. The facts of the latter case were as follows:
The railway company had sprayed weed-killer on its railway tracks for maintenance purposes. The
weed-killer had however fallen on the farmland adjacent to the tracks. As a result, the farmers belonging
to the cooperative had some of their grapes rendered inedible. Therefore the cooperative (to whom the
farmers were, in terms of the cooperative’s constitution, obliged to give their crop) suffered loss. Although
this loss was regarded as foreseeable by a person in the position of the railway company, the company
successfully excepted to the cooperative’s claim for compensation. This was because the Court held that
there was no ‘special relationship’ between the parties such as to create a duty owed by the defendant to
the plaintiff. To found liability, the plaintiff would’ve had to point to some exceptional fact or policy
argument that would justify the imposition of such liability.

A similar approach was established in English law by ​Spartan Steel & Alloys Ltd v Martin & Co
(Contractors) [​ 1973] 1 QB 27​. The defendant company was doing some construction work, and their
bulldozer cut an
underground power cable. This cable supplied the plaintiff’s factory with power. When the power was cut,
the plaintiff had iron ore in its furnace. To get the ore out of the (now powerless) furnace the plaintiff had
to douse it with oxygen, which ruined the batch of ore. The plaintiff also lost profit as a result of being
without power for the next three days. The plaintiff sued the defendant for both the loss of profit and the
irreparable damage caused to the ore. The Court per Lord Denning awarded the latter amount, but the
profits claim raised the tricky, relational economic loss issue. The Court held that there was no reason to
impose liability. This was justified on policy grounds: Firstly, the plaintiff was in a position to guard
against loss caused by a power failure (by installing back-up generators, for example) and should be
encouraged to do so. Secondly, if liability was imposed here this would create a floodgates risk. Note that
these are the exact equivalents of the arguments advanced by Schreiner JA in ​Union Government.​

A more progressive strand: ​Coronation Brick ​and

Anns

Thus we see that in English and South African law relational economic loss was treated very differently
to loss suffered as a result of harm to person or property—liability would in the former cases be imposed
only in exceptional circumstances. However, in ​Coronation Brick v Strachan Construction Co 1 ​ 982
(4) SA 371 (D) ​the Natal High Court delivered a very adventurous judgment. Although it is a provincial
decision, it seems to remain good law. The judgment basically identifies an exceptional circumstance in
which liability for relational economic loss would be imposed. This case had very similar facts to ​Spartan​:
the construction company’s bulldozer severed a municipal power cable which supplied the plaintiff’s
premises with power, and the plaintiff sued the construction company for the resulting loss. But in this
case the facts were stronger: the construction company knew that the cables were on the land where
they were working, they knew the cables supplied the plaintiff’s business with power, and they knew that
if they cut the cables the plaintiff would suffer loss. Like in ​Franschhoek,​ the defendant excepted to the
claim; but unlike in ​Franschhoek,​ the exception was dismissed. Booysen J began his judgment by
enumerating the relevant factors to be considered when deciding whether to impose liability:
1. the possible extent of the loss; 2. the extent of the risk of such loss occurring; 3. the value to
society of the defendant’s conduct; 4. whether there were reasonably practicable measures by which
the defendant could avert the risk; and 5. the proportionality between the cost of doing so and the
probable harm to the plaintiff.

Then Booysen J ejaculated the following

passage:

It seems to me on balance that the circumstances alleged are of such a nature that the
defendant's alleged conduct does incite moral indignation and offends against the legal
convictions of the community. I believe that the attitude of the community to defendant's
alleged conduct would be 'but for heaven's sake, you knew precisely where the cables
were; you knew that if they were cut plaintiff would suffer a substantial loss of income,
surely there was a legal duty on you to take measures to avert the loss'. It follows that it
is my view that the legal convictions of the community demand that the alleged conduct
of the defendant and its driver, if he had been duly warned, be branded unlawful and
 that the damage suffered should be made good. It is true that there was no special
relationship between the plaintiff and defendant but, as I understand the position it is
not a prerequisite for liability for pure economic loss. It is also true that Counsel were
unable to refer me to any authority in which the limits of Aquilian liability had been
extended to cover this case but neither were they able to refer me to authority for the
refusal of a remedy in these circumstances.
It was submitted, as I have mentioned, that I was precluded by the decision in the S ​ hell
and BP ​case from recognising this claim. In this case, however, it has been alleged
specifically that the defendant knew that the plaintiff and Corocrete would suffer
damages whereas the loss to the second plaintiff in the S ​ hell and BP ​case was not
specifically contemplated. It seems to me that there is a difference in principle between
a situation in which loss is foreseeable in the sense that it will be suffered by all
members of an unascertained class of potential victims, and a situation in which loss to
a particular victim of an unascertained class is foreseen.

So Booysen J begins by using the ​Ewels t​ est to argue that the legal convictions of the community would
find the defendant’s conduct wrongful. Then he points out that the existence of a special relationship
between the parties is not a prerequisite for liability. Thus the absence of such a relationship ​in casu i​ s
not a barrier to the imposition of liability. Then he goes on to argue that in fact liability ​should ​be imposed
in casu b​ y drawing a distinction between the ​Shell and BP c​ ase (which formed part of the relatively
conservative line of cases described above) and one where the defendant actually foresaw the loss to
the specific plaintiff. As we have said, this is a bold decision, departing from the special relationship
concept used in earlier South African law and the English ​Spartan ​case. But we can see that the decision
relies upon the particularly strong facts of the case: the loss to the plaintiff was not just ​foreseeable​; it
was ​actually foreseen ​by the defendant.

Booysen J then bolsters his decision by running through his earlier list of
factors:

In this matter the extent of foreseeable loss was substantial and the degree of risk that
would be suffered high. On the facts known to me I would regard the value to society of
Defendant’s activities as no higher than that of Plaintiff’s. Although I have very little to
go on it would seem to me reasonably possible that there were reasonably practicable
measures available to Defendant and its driver to avert any loss occurring to Plaintiff
and Corocrete at little cost to Defendant.

Then he ends his judgment by giving a nod to certain policy

considerations:

There are, of course, circumstances which militate against the recognition of a claim in
this matter. It might give rise to a multiplicity of actions and the situation might be “one
 fraught with an overwhelming potential liability.”

But Booysen J dismisses this point by saying essentially that, because this is an exceptional case where
the damage was actually foreseen, there is no risk of liability being imposed in cases where it was not
foreseen.

So ​Coronation Brick ​clearly extends the ​Union Government p ​ rinciple by imposing liability in cases
where there was actual knowledge by the defendant of the risk to the plaintiff. Booysen J does not
mention the English ​Spartan d ​ ecision at all. Boberg optimistically sees this as evidence of a liberalizing
tendency in our law, linked to the parallel tendency in English law: In ​Anns v ​ ​Merton London Borough
Council 1 ​ 978 [AC] 728 [HL] ​and ​Junior Books v Veitchi ​1983 1 AC 520 ​the House of Lords departed
from ​Spartan;​ and Boberg thinks our law means to do the same and that is why Booysen J ignored
Spartan.​ But Scott points out that, although ​Anns w ​ as a very liberal decision which was seen at the time
as a sea change in the area of pure economic loss, both it and the subsequent ​Junior Books c​ ase have
since been decisively rejected by ​Murphy v Brentwood DC [​ 1991] AC 398 ​(as we will see below).
Therefore the sea change never arrived, and English law is pretty much back at
the conservative ​Spartan ​ruling. And so, contrary to Boberg, we cannot regard ​Coronation Brick a ​ s
developing our law in line with any long-term English trend.

Other common-law jurisdictions

o ​Canada

But the Canadian Supreme Court in ​Canadian National Railway v Norsk Pacific Steamship Co (​ 1992)
91 DLR (4th) 289 ​did give a more permissive and progressive decision. There was, spanning a river, a
State-owned rail- bridge of which the plaintiff company was by far the main user. The defendant’s barge
collided with the bridge, damaging it and making it temporarily impassable. The plaintiff sued the
defendant for the economic loss resulting from its being unable to use the bridge. The Court, by a narrow
majority, decided to impose liability. The leading judgment was by McLachlin J. Her two main
justifications were that, because the plaintiff was the only real user of the bridge:
1. There was ‘proximity’ between the parties in that the loss to the plaintiff was highly foreseeable or
even foreseen by the defendant. 2. There is no floodgates risk here, because no other
persons used the bridge in any significant way.

Stephenson J’s concurring judgment was even more progressive. He says at one
point:

Some argue that there is a fundamental distinction between physical damage (personal
and property damage) and pure economic loss and that the latter is less worthy of
protection ... but I am left unconvinced. Although I am prepared to recognize that a
 human being is more important than property and lost expectations of profit, I fail to see
how property and economic losses can be distinguished.

So the point is that he thinks pure economic loss should not be treated any differently. He rages against
the exclusionary rule and argues forcefully that the basic reason for the rule, viz. the risk of indeterminate
liability, is specious: the risks, he says, have never materialized in areas of law where the exclusionary
rule has been relaxed; and, even if extensive liability was imposed, if the damage is real and was caused
by fault then that is as it should be.

But La Forest J (dissenting) took a very different approach. He said that although liability may in some
cases be imposed for relational economic loss, it should not be imposed in this case. This was because
of one vitally important fact, which overrode the foreseeability of the harm: the owner of the bridge had
contracted out of liability for damage to the bridge. Because of this contract:
1. Loss must lie where it fell, or otherwise the contract would be
upset. 2. It is clear that the plaintiff foresaw the risk and took it on
voluntarily.

La Forest J said on his point:

In contracts between sophisticated parties such as those in the case at bar, who are
well advised by counsel, such exclusions of liability often result from determinations
regarding who is in the best position to insure the risk at the lowest cost.

So we can see that both of his justifications are policy-based, and both depend on the existence and
contents of the contract between the parties.
Two other judges concurred in La Forest J’s forceful dissenting judgment, and therefore the Court split
narrowly, 4-3. It is as a result hard to know what to make of the Court’s overall approach.

o ​Australia

Now we turn to the Australian High Court’s decision in ​Perre v Apand Pty Ltd ​(1999) 198 CLR 180​. The
defendant company had introduced a certain kind of bacteria into an area of South Australia. This
infected potatoes grown in this area. Perre, the plaintiff, was one of the farmers there, and he customarily
exported some of his potatoes to West Australia. But West Australia prohibited the entry of potatoes
infected with the bacteria. Thus the plaintiff suffered economic loss because of the defendant’s conduct.
(These facts are very similar to those in ​Weller v Foot & Mouth Disease Research Institute​, the
English case we considered earlier: the defendant introduced a dangerous microorganism into an area,
which didn’t actually damage the plaintiff’s property but did, as a result of a third party’s regulations,
cause the plaintiff economic loss.)
The Court per Gleeson CJ decided to impose liability even though this was a case of relational economic
loss. The basic reason for this decision was that the defendant company’s internal communications said
that the company’s employees must take precautions when handling the bacteria in potato-growing
areas. Crucially, this showed that the company had foreseen the damage to the class of persons to
which the plaintiff belonged and thus justified the Court’s decision. Clearly this justification is very similar
to the justification that had previously been given in our own ​Coronation Brick ​case.

Recap

So, to summarise, the position is as follows. There is an exclusionary rule in respect of relational
economic loss, so the defendant will presumptively not be liable (​Union Government,​ ​Franschhoek,​
Spartan)​ . The plaintiff may however rebut this presumption if he can show a special relationship between
the parties or give sound policy arguments for the imposition of liability. One of the recognised ways to
show this is if the defendant foresaw the risk of harm to the plaintiff’s class of persons (​Coronation Brick,​
Perre v Apend)​ . However, this is in turn subject to the loss’s being allocated by contract (La Forest J in
CNR v Norsk​) or being at least ​potentially ​remediable in contract (​Union Government​).

3 Loss arising from a breach of contract

Introduction: two English law trends

We already know a lot about pure economic loss from the previous sub-topic. In particular, we know that
there is the exclusionary rule, a sort of rebuttable presumption against wrongfulness. But during the 20​th
century there were two liberalizing trends in English law which saw departures from this exclusionary rule
in certain areas of law:

o ​Negligent misstatement

The major English case in this area is ​Hedley Byrne & Co Ltd v Heller & Partners Ltd [​ 1964] AC 465​.
The plaintiff (HB) was an advertising agency. A third party, Easipower, had wanted HB to run an ad
campaign for them. HB was scared about Easipower’s ability to pay for their services, so they asked
Easipower’s bank, Heller, for a credit reference. Heller gave such a reference, saying that Easipower’s
creditworthiness was
‘considered good for its ordinary business engagements’. However, the letter was headed, ‘without
responsibility on the part of this bank’—in other words, Heller disclaimed responsibility for its advice.
Anyway, once HB had incurred various costs in reliance upon its agreement with Easipower, the latter
went insolvent and was thus unable to pay HB. HB sued Heller for its allegedly negligent misstatement.
The House of Lords famously concluded that, but for the disclaimer, Heller would be liable. The Court
thus rejected the normal rule that there could not be liability for a negligent misstatement outside of
contractual contexts. (It is not exactly clear what this latter phrase means, and moreover English
contracts are different to our own because English contract law requires consideration.)

The rejection of the normal rule was ​obiter,​ but has nevertheless proved influential. When English courts
consider whether to impose liability for negligent misstatement, they now must look for an assumption of
responsibility by the defendant. There will be such assumption if:
1. the defendant has special knowledge or professional skills relevant to the
statement; 2. the statement is made in a business context; and 3. the plaintiff has
relied upon the advice of the defendant.

In ​Hedley Byrne ​the Lords found that these requirements were met but for the disclaimer. The case thus
provided a relatively permissive approach for liability for negligent misstatements. This was the first trend
of English law which came to influence South African law. The second was:

o ​Anns ​and subsequent cases

In ​Anns v Merton London Borough Council ​[1978] AC 728 ​the builders of a row of houses submitted
the building plans to the Council for approval, as required by law. The Council said the plans were
sound, so the houses were built and sold to various owners. But the plans were actually defective, so
cracks started appearing in the walls and the floors began to slope. The owners therefore sued the
construction company ​and t​ he Council for the repair costs. Liability was imposed on the Council for its
negligent failure to detect the flaw in the plans. The plaintiffs were therefore able to recover the costs of
repair.

The essential feature of Lord Wilberforce’s reasoning, in which all the Lords concurred, was as follows:
The plaintiffs had to undertake the repairs because the houses were so defective as to pose an imminent
danger of damage to person and property; and therefore this was effectively a case of material physical
damage. By treating the case as one of physical damage, the Court was able to take a much more
permissive approach than in other cases of pure economic loss. And thus, the Court found in favour of
the plaintiff.

This decision initially proved very influential, and was followed by ​Junior Books Ltd v Veitchi & Co Ltd
[1983] AC 520​. The defendant had built a shit floor for the plaintiff, who brought an action for the
defendant’s alleged breach of his non-contractual duty of care. Surprisingly, the House of Lords imposed
liability, relying on ​Anns ​and the proximity between the parties.

South African law’s response

 o ​Preliminary cases

As we know, the baseline for liability for pure economic loss is the exclusionary rule. In ​Administrateur
Natal v Trust Bank van Afrika Bpk 1 ​ 979 (3) SA 824 (A) ​the Court excluded liability on the facts but
recognised that in principle liability might be imposed for a negligent misstatement. This decision was
clearly located in the ​Hedley Byrne r​ easoning, although the terminology used was South African law’s
‘wrongfulness’.
Also note that ​Minister van Polisie v Ewels ​1975 (3) SA 590 (A)​—which we encountered in the
omissions topic—is relevant to all of delict, in that the Court established a general wrongfulness criterion,
viz. the legal convictions of the community. We can use this criterion in pure economic loss cases too.

​ illicrap ​case
o ​The L

Then in the seminal ​Lillicrap Wassenaar and Partners v Pilkington Brothers (Pty) Ltd [​ 1985] 1 All
SA 347 (A) ​the Appellate Division pronounced comprehensively on delictual liability arising from a
breach of contract. The plaintiff, Pilkington, was a glass manufacturing company. The defendant,
Lillicrap, was a firm of consulting engineers. Pilkington wanted to build a new factory, so it employed
Lillicrap to do a soil investigation to determine whether the chosen site was suitable and, if so, to
supervise the construction of the factory. Pilkington had very exacting specifications because glass
manufacturing plants have to be completely stable. Lillicrap professed to have the necessary skills to
undertake such a project, and it clearly knew that Pilkington was relying on their expertise—this was the
whole point of hiring them. Sometime during the project, Pilkington assigned its contractual rights to a
third party, who would continue to oversee the project. When the factory was eventually built, it was
found that it was unstable; the site was actually unsuitable. To make the factory usable would cost
Pilkington R3.5m, some of which would go towards further soil investigations and some of which would
pay for the repairs. Pilkington claimed the R3.5m from Lillicrap, framing its action entirely in delict.
Pilkington basically argued that Lillicrap owed to it a (delictual) duty to use professional care and skill.
Lillicrap excepted to the claim, arguing firstly that it did not owe a duty of care and secondly that liability
could in any case not be imposed because this was pure economic loss. The court ​a quo ​per Margo J
substantially dismissed the exception, so Lillicrap appealed.

The Appellate Division held in a 4-1 split that the exception should be upheld in its entirety. Grosskopf
AJA’s majority judgment dealt with three major issues:

1. The possibility of concurrent liability

The first question was whether it is in principle possible for a defendant to be simultaneously delictually
and contractually liable. Lillicrap had argued not, in other words that a contractual relationship between
parties excludes a delictual relationship. But Grosskopf AJA dismissed this argument, saying that Roman
law permitted both claims and South African law did so too, as established in ​Van Wyk v Lewis ​1924 AD
438​. Therefore whether Pilkington could’ve claimed in contract is irrelevant: even if it could, this would

not exclude a delictual claim. ​2. Wrongfulness

Normally when there is damage to property, wrongfulness is established uncontroversially. Pilkington

sought to exploit this by arguing, in reliance upon ​Anns,​ that there was physical damage and so this was
not a case of pure economic loss. This argument enjoyed some success in the court ​a quo​, but
Grosskopf AJA roundly rejected it. The result was that he regarded this as a case of pure economic loss,
not a case of physical damage.

So, regarding this as a case of pure economic loss, could wrongfulness be established? Grosskopf AJA
referred to ​Administrateur a ​ nd ​Ewels ​in laying out our law’s general approach to liability for pure
economic loss: use the general reasonableness criterion to decide whether, on the basis of policy and
value judgments, liability ought to be imposed.
The first question which Grosskopf AJA then addressed was whether wrongfulness would ​necessarily b ​ e
established in delict where there was a breach of contract. Although ​Van Wyk v Lewis ​shows that where
physical ​injury has been caused by a breach of contract then such breach will be delictually wrongful, this
was not a case of physical injury. On consideration of further authorities, Grosskopf AJA concluded that
there no authorities which necessitated a finding of delictual wrongfulness owing to a breach of contract,
and that ‘it would accordingly be breaking fresh ground if it were to recognize the respondent’s cause of
action as valid’.

The second question was whether wrongfulness was nevertheless established—in other words, whether
liability should be extended—in the present case. Again Grosskopf AJA’s answer was ‘No’:

While the contract persisted, each party had adequate and satisfactory remedies if the
other were to have committed a breach.

Moreover, the Aquilian action does not fit comfortably in a contractual setting like the
present. ... In general, contracting parties contemplate that their contract should lay
down the ambit of their reciprocal rights and obligations. To that end they would define,
expressly or tacitly, the nature and quality of the performance required from each party.
If the Aquilian action were generally available for defective performance of contractual
obligations, a party's performance would presumably have to be tested not only against
the definition of his duties in the contract, but also by applying the standard of the
bonus paterfamilias​. How is the latter standard to be determined? If ... it were to be
argued that the ​bonus paterfamilias ​would always comply with the standards laid down
by a contract to which he is a party, one would in effect be saying that the law of delict
can be invoked to reinforce the law of contract. I can think of no policy consideration to
justify such a conclusion. ... It seems anomalous that the delictual standard of ​culpa ​or
 fault should be governed by what was contractually agreed upon by the parties.

So, in short, Grosskopf AJA’s reason for not finding Lillicrap’s conduct wrongful is that it would be bad
policy to use delictual standards to regulate contractual duties. He pointed out, further, that parties might
extend, limit or exclude liability in their contract, in which case courts should be loath to extend the law of
delict into this area and thus interfere with the freely-concluded terms of the contract.

Why does Grosskopf AJA reach a different conclusion to the court ​a quo a​ s far as the application of the
​ nd ​Junior Books d
Anns a ​ ecisions? The gist is that Grosskopf AJA denies that this is a case of physical
damage. But he gave two other reasons why the progressive English findings were not applicable here:
a) South African law is more cautious than English law: in English law, a ​prima facie ​duty of care is
established whenever there is proximity between the parties, and it falls to the defendant to rebut this
by making persuasive policy arguments; but in South African law, liability will not be extended to new
situations unless positive policy arguments justify doing so. Therefore just because the more liberal
English approach yielded the imposition of liability is no reason to think it would do so here. b)
Moreover, there is no reason to think that the particular policy arguments which motivated the ​Anns
and ​Junior Books c​ ourts would apply in the present
case.

3. Actionable loss

The third question is whether the damages being claimed by the plaintiff are in principle actionable in
delict. If not, this is an additional reason (additional to the fact that there is not wrongfulness) to reject the
plaintiff’s claim. Grosskopf AJA’s answer to this question is as follows:
The respondent computes its loss, broadly speaking, as being the amount which would
have to be spent to bring the plant up to the standard laid down by the contract. This
amount does not, however, in my view represent a loss in the ordinary sense of the
word. For all we know the respondent's patrimony may have been enhanced by the
erection of the plant despite its alleged defects. The respondent has not alleged that
the value of the plant is less than the respondent has paid for it. What the respondent
does, in effect, is to sue for the equivalent in money of its bargain. That is the
contractual measure of damages.

In other words, the plaintiff is using the wrong measure of damages to succeed in a delictual claim: he is
using contractual damages not delictual damages.

​ illicrap
o ​Comment on L

So, let us look at the first two major issues in the judgment: firstly whether there can be concurrent
liability in contract and delict, and secondly whether delictual liability may be imposed for pure economic
loss arising from a contractual breach. Grosskopf AJA’s answer to the first question is ‘Yes’, and to the
second ‘Not really’ (it is possible in principle but, from his reasoning, is obviously very unlikely).

Boberg is very critical of the second point. He says that Grosskopf AJA’s reasoning is a ​non sequitur:​ the
mere fact that pure economic loss arising from a contractual breach is not ​per se ​delictually wrongful
does not imply that it is not wrongful ​in casu​. And yet, Grosskopf AJA seems to say that there is nothing
which absolutely compels him to find there is wrongfulness, and without further ado concludes that
therefore there is no wrongfulness. But, says Boberg, it is possible that, as in ​Van Wyk v Lewis,​ special
facts beyond the breach of the contract itself could justify delictual liability. Or, as in ​Hedley Byrne​, the
court could use the assumption of responsibility by Lillicrap to found liability. The Court should have at
least considered it. Scott’s defence of Grosskopf AJA is that the plaintiff did not plead this: his cause of
action was pleaded on the basis of the breach of contract and nothing more, alleging that the breach of
itself justified delictual liability.

Turning now to Grosskopf AJA’s claim that the damages were not actionable: Scott and Fagan agree
that Grosskopf AJA was totally correct: Pilkington was claiming damages to remedy defective
performance under a contract, and this simply cannot be considered to be delictual damages. For
roughly the same reason, there cannot have been wrongfulness: there is simply no conduct which could
give rise to delictual liability. If Pilkington had claimed for consequential loss, there would have been no
problem—this was what had been successfully claimed in ​Hedley Byrne​. But Pilkington asked for a
monetary payment in lieu of proper performance. This is simply not a delictual claim. Grosskopf AJA
should have stressed this fact as another basis upon which to reject the plaintiff’s claim.

Subsequent developments in English

law

Now we return to the two English trends we discussed earlier. Especially in light of these progressive
trends, ​Lillicrap ​was criticised as being too conservative. But later developments in English law have
actually vindicated ​Lillicrap,​ in a number of different respects. Firstly, in ​Henderson v Merrett
Syndicates Ltd [​ 1994] 2 AC 145 ​the House of Lords held that concurrent liability was possible (and also
expanded the ​Hedley Byrne ​principle to include the provision of professional skills and remote parties,
​ ut by a contractual intermediary). Secondly, the
i.e. parties linked not directly by a contract ​inter partes b
progressive ​Anns a ​ nd (by implication) ​Junior Books w​ ere decisively overruled by ​Murphy v Brentwood
District Council ​[1991] 1 AC 398​. Factually,
this case was very similar to ​Anns:​ a house started degenerating because of its shitty foundations,
causing the owner to sell at a £35 000 loss. He tried to sue the Council for negligently failing to spot the
flaw in the plans submitted to it. Conceptually, this case was very similar to ​Lillicrap​: the plaintiff wanted a
substitute performance, or, more particularly, the return of the undue part of the purchase price (almost
like the ​actio quanti minoris​). The Court rejected the claim, saying there was no physical damage to the
property—thus rejecting ​Anns.​ This, said the Court, was simply a bad bargain, and accordingly all the
aggrieved party’s remedies must lie in contract. This, of course, is exactly what Grosskopf AJA said in
Lillicrap​. Certainly, the criticism of ​Lillicrap r​ aised at the time, namely that it was out of step with other
jurisdictions, cannot stand.

Subsequent developments in South African

law

​ illicrap ​rule
o ​The L

We know the outcome of ​Lillicrap​—Grosskopf AJA refused to impose delictual liability on the facts
before him—but what ​rule ​did the case establish? As can be seen from the prescribed readings for this
topic, Hutchison & Van Heerden and Boberg interpret the case quite differently to Scott and Fagan. In
this section we discuss the development of ​Lillicrap ​in later South African cases.

o ​English trends and the complex structure

exception

Before we can do this, we need to understand what was going on in English law at this time; as usual,
English trends greatly influenced our own legal development. We already know that ​Hedley Byrne w ​ as
developing the law relating to negligent misstatement. We also know that in ​Murphy ​the House of Lords
refused to impose delictual liability where the defendant’s conduct had resulted in the building of a
sub-standard, rapidly deteriorating house. The Lords had said the house was simply a defective product
and so all the plaintiff’s remedies are contractual. In delict, in other words, one cannot claim for what is
essentially a price reduction.

Then in ​Bellefield Computer Services Ltd v E Turner & Sons Ltd [​ 2000] EWHC Admin 284 ​the
‘complex structure’ exception was advanced by counsel but roundly rejected by the Court. This refers to
the argument that, if one part of a complex structure is defective and, as such, causes damage to the
remainder of the structure, the owner of the remainder of the structure can claim compensation against
the person responsible for the defect in the other part.

An uncontroversial example of this is when a car’s brakes fail and causes a car crash: one part (the
brakes) of a complex structure (the car) is defective, and the mechanic responsible for this defect is liable
for the physical damage resulting to the car. But how far does this principle go? If the faulty electrical
wiring in a house causes a fire which destroys the house, is the electrician liable for the loss? If yes,
why?

In ​Bellefield,​ the ambit of the complex structure exception is exactly what the court had to deal with. A
firm of consulting engineers had built for the plaintiff a big factory with exceptionally big chimneys. A fire
started in the factory, and because the chimneys ventilated the factory to such an unusually thorough
extent the fire was able to burn very fiercely and do a lot more damage than it otherwise would have. The
plaintiff sued the engineers for constructing such stupidly big chimneys. The Court rejected this claim,
however, saying that, just like ​Murphy,​ this was simply a defective product. In short, then, the complex
structure exception did not apply in this case.
The upshot of all this is that there exists an exception to the rule that a defective physical good must be
regarded simply as a defective product and accordingly incapable of founding delictual liability. This is
the complex structure exception. But there is a spectrum or hierarchy of complex structure cases; in
some of these cases the exception creates liability (e.g. the car) and in some it does not (e.g. ​Bellefield)​ .

​ wo Oceans Aquarium ​case

o ​The T

Now we can turn to the first major South African case which had to apply ​Lillicrap​, namely ​Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (​ Pty) Ltd 2006 (3) SA 138 (SCA)​. We know the
facts: K&T were a firm of consulting engineers which the Waterfront hired to build the Aquarium. The firm
decided to use a polyurethane lining to waterproof the big tanks, but ultimately water seeped through and
corroded the steel reinforcements. The Aquarium sued for the repair costs and the cost of constructing a
second tank to which the sharks and shit could be transferred so that the aquarium could stay open
during the repairs. They alleged that K&T was at fault for choosing to use the lining rather than an actual
waterproof structure and also for negligently installing the lining. An important complicating factor was
that the Trust hadn’t actually been founded when the consulting engineers began their work; thus the
Trust only contracted with the firm when it came into existence sometime later. This meant there was a
pre-contractual stage to events, with at least some of the negligence occurring in this stage. For this
reason the Trust couldn’t simply rely on the contract it later concluded with K&T (or at least the Trust
thought ​it couldn’t; see below), and therefore it framed its claim in delict. The key question was thus
whether K&T’s conduct was delictually wrongful. K&T excepted in the court ​a quo o ​ n three grounds; one
succeeded. The Trust appealed to the SCA. Because the judgment dealt with an exception, all the
factual allegations were assumed to be correct.

The court ​a quo h ​ ad simply applied ​Lillicrap ​to uphold the defendant’s exception, saying that if the
plaintiff wanted to establish delictual liability it would have to establish a delictual duty without relying on
the terms of the contract. But on appeal the Trust said that ​Lillicrap ​was distinguishable for two reasons:

1. This case, unlike ​Lillicrap,​ concerns physical harm rather than pure economic
loss.

The idea is that, because the Aquarium’s concrete structures were actually damaged, this was a case of
physical harm. Recall that in ​Lillicrap t​ he factory had simply been unsuitable for glass manufacturing, so
that case was regarded as one of pure economic loss. It should be obvious by now why it would be
highly advantageous for the plaintiff to establish that this was a case of physical damage:
 Their first argument in support of this contention, which was somewhat obliquely raised,
was that while the claim in ​Lillicrap ​was for pure economic loss, the trust's claim
resulted from physical damage to the aquarium caused by the respondent's negligent
design. Of course, if the appellants' claim could be construed as one resulting from
physical damage to property, questions regarding the extension of Aquilian liability
would not arise. In such circumstances wrongfulness will be presumed. The possibility
of a concurrence of contractual and delictual liability on the same facts, would be of no
consequence. That much was pertinently decided in L ​ illicrap ​(at 496D-I).

But Brand JA rejected the Aquarium’s first argument,

continuing:

But, it is apparent, in my view, that the appellants' claim cannot possibly be construed
as one based on physical damage to property. It is clearly a claim for pure economic
loss. As was pointed out by Grosskopf AJA in L ​ illicrap ​(at 497I-498H), with reference to
a similar
argument in that case, the appellants' allegation is not that as a result of the
respondent's negligent conduct the aquarium was 'damaged'. Their case is that, as a
result of the respondent's negligent design, the aquarium was defective from the start. It
was always of inferior quality. No conduct on the part of the respondent had caused it
to deteriorate in any way (see also ​Murphy v Brentwood District Council ​[1991] UKHL 2;
[1990] 2 All ER 908 (HL) 919 and ​Woolcock Street Investments (Pty) Ltd v C D G (Pty)
Ltd (formerly Cardno & Davies Australia (Pty) Ltd ​[2004] HCA 16 para 20).

Scott says that Brand JA is correct, and that ​Murphy d ​ oes indeed have application. This is where the
complex structure exception is relevant. Basically, the Trust was trying to use this exception to justify it’s
regarding this as a case of physical damage.​7 ​But Brand JA clearly rejects this and regards this as a
Murphy-​ type case of a defective product—and thus a case which falls within the scope of the ​Lillicrap
rule. A lot of criticism has been expressed, in both English and South African law, of these judgments
(respectively, ​Murphy ​and ​Lillicrap)​ which deny that these are cases involving physical damage. Scott,
however, agrees with the judges.​8

Anyway, because Brand JA rejects the plaintiff’s classification, the plaintiff then gives a different way of
distinguishing ​Lillicrap:​

2. In this case, unlike in ​Lillicrap​, there were no satisfactory and adequate contractual remedies
available
to the plaintiff.
Brand JA describes the plaintiff’s argument here as
follows:

​ illicrap ​the presence of satisfactory and adequate contractual remedies was the
In L
principal reason why this court held that an extension of Aquilian liability was not
justified. In the present matter, there is no question of contractual remedies because
there was no contract between the respondent and the trust when the negligent
conduct occurred.

The idea is that, whereas Pilkington could have sued under the contract it had concluded with Lillicrap,
the Trust had not concluded any similar contract; and therefore the basis for the ​Lillicrap ​decision,
namely that courts should not found a delict when a contractual remedy is available, fails. But Brand JA
basically holds that the plaintiff has misunderstood the breadth of Grosskopf AJA’s conclusion:

In L​ illicrap ​the plaintiff in fact had a remedy emanating from the contract that coincided
with its claim in delict. But I do not think it was intended to suggest that if there had
been no such contractual remedy a delictual remedy would have been granted. On the
contrary, the observations (at 500G-501B) concerning the difficulties that would emerge
if delictual liability were to be imposed and the delictual and contractual standard were
not to coincide, shows the converse. The point underlying the decision in ​Lillicrap ​was
that the existence of a contractual relationship enables the parties to regulate their
relationship themselves, including provisions as to their respective remedies. There is
thus no policy imperative for

7 ​
I hate to be a negative nancy, but I really don’t think it’s true that the Trust was relying on the complex structure exception. No
mention is made in the judgment of ‘complex structures’ or ​Bellefield​—all that is said is the common-sense claim that physical
damage has occurred (because the Aquarium building has actually been corroded and damaged, unlike in ​Lillicrap​). Introducing
the complex structure exception just complicates things unnecessarily. 8​ ​Neither Grosskopf AJA nor Scott justifies their view,

except to refer to ​Murphy​. I agree that the finding in ​Two Oceans ​follows naturally
​ from ​Murphy (​ which also involved actual
damage to the houses following the negligence), but since we aren’t required to follow English law and no investigation is done
into whether the English law is desirable, this seems like a non-argument to me.
the law to superimpose a further remedy. Consequently, the mere absence of a
contractual remedy in the present case does not by itself distinguish it materially from
Lillicrap​.

The key, in other words, is that Brand JA regards the ​Lillicrap ​rule to run deeper than simply saying, ‘You
can’t sue in delict if you have a contract with the defendant under which you could sue him.’ Rather, the
rule is, ‘You can’t sue in delict if you had the ​opportunity ​to conclude a contract with the defendant to
regulate your affairs.’ Thus the key is the mere fact that parties are free to regulate their relationship in
contract—and it makes no difference whether the parties actually chose to do so.

Thus the plaintiff is prompted to make a slightly different argument, namely that indeed there was not
even an ​opportunity f​ or the Trust to conclude a contract with K&T. This was because the Trust simply did
not exist when K&T’s negligent conduct was performed. But Brand JA rejects this argument too. He said
that it was clear that the parties always knew that if construction went ahead, a trust would be created
which would then contract with K&T in respect of the completion of the project. So the parties were from
the outset contemplating their contractual relationship, and moreover when the Trust was formed it was
quite possible for them to regulate their contractual relationship retrospectively so as to cover the earlier
period in which the Trust had not existed—and during which K&T’s negligent conduct was performed.
(This retrospective arrangement could take the form of a ​stipulatio alteri ​in favour of the Trust or simply
the insertion of apposite terms relating to the prior conduct of the parties.) So, with this logic, Brand JA
shows that the ​Lillicrap r​ ationale applies to this case too: the parties could regulate their relationship
contractually and so delict should not interfere.

Brand JA supported this argument using the vulnerability risk criterion, which was applied in ​Woolcock
Street Investments (Pty) Ltd v C D G (Pty) Ltd (formerly Cardno & Davies) [​ 2004] HCA 16​. The idea
is that the plaintiff’s vulnerability to risk is a critical issue in deciding whether to impose delictual liability in
a given situation. And ‘vulnerability’ in this context means essentially whether the plaintiff was unable to
avoid the risk by other means. The implication is obviously that the Trust could easily avoid the risk by
other means, viz. by concluding a contract, and so the ​Lillicrap l​ ogic is fortified.

Finally, Brand JA then repeats some of the conceptual problems identified in ​Lillicrap w ​ hich show ‘why
Aquilian liability does not fit comfortably in a contractual setting’. For example, would K&T be held to the
contractual specifications, the standard of the reasonable engineer, both or neither?

There is also a rather odd coda to the judgment in that the Trust tried to draw an analogy with the case of
a negligent builder who was sued by a subsequent owner of the building, i.e. one who had not himself
contracted with the builder. In English law such an owner would have a claim against the builder. But this
argument is totally whack because this rule is derived at base from English ​statutory l​ aw.​9 ​(Nevertheless
it is interesting to consider whether now, in light of the Consumer Protection Act which does provide
similarly to the relevant English statute, we will align with English law and grant such claims.)

o ​Comments

The ​Two Oceans c​ ase is basically an orthodox application of ​Lillicrap t​ o more difficult facts. The facts
were trickier for two main reasons:
9 ​
This is what Scott said here, but it seems very strange: the plaintiff was actually relying on Australian and Canadian decisions,

and anyway
​ Brand JA dismisses the argument simply because those authorities deal with a case where the subsequent owner
had no way to regulate his relationship with the builder contractually. No mention is made whatsoever about the statutory basis
or whatever.
1. Because there was actual physical damage to the aquarium building, it was open to the Court to
find that this was a case of physical damage or one which fell within the complex structure exception
(rather than simply finding it was a case of pure economic loss, as in ​Lillicrap)​ . 2. Because there was
no actual contract between the parties, it was open to the Court to say that
Lillicrap​’s rationale did not apply.

By applying ​Lillicrap ​so unequivocally in spite of these factual differences, the SCA shows a big middle
finger to the haters who said ​Lillicrap ​was wrongly decided.

Scott says that it is slightly odd that the Court placed so much emphasis on policy reasons rather than
simple doctrinal reasons. Obviously it makes superficial sense to rely on policy reasons given that it is an
entrenched principle of our law that in pure economic loss cases the plaintiff must provide policy reasons
justifying the imposition of liability. But, as one will recall from what she said about ​Lillicrap​, Scott gets
very moist indeed for the alternative ground upon which the plaintiff’s claim could be dismissed: as a
matter of basic legal doctrine, these are simply not the kind of losses which the law of delict deals with.
So what Brand JA could and should have done, as far as Scott is concerned, is to use this fundamental
principle to dismiss the Trust’s claim without any fuss or controversy. The Trust, after all, is basically
claiming for a price reduction in proportion with the defectiveness of a performance; and that is very
much a non-delictual claim.

​ oltzhausen ​case
o ​The H

We now consider ​Holtzhausen v ABSA Bank 2 ​ 008 (5) SA 630 (SCA) ​to get a further sense of the rule
that ​Lillicrap ​has actually laid down. The plaintiff had been approached by a mischievous character who
said he was an agent wanting to buy some diamonds for his principal, an unidentified purchaser, for
R500 000. The agent wanted a R20 000 commission. The plaintiff agreed to the sale. The agent said he
would pay the R500 000 into the plaintiff’s bank account, and gave the plaintiff three telephone numbers
with which he could confirm the payment. After seeing that R500 000 had been paid into his account, the
plaintiff went to the bank to make sure that the payment had been properly made. He told the bank
manager the situation, gave him the telephone numbers, and asked him to verify everything. The bank
manager later assured plaintiff that it was indeed safe to proceed with the transaction. So the plaintiff
withdrew the R20 000 and paid it to the agent, whereafter it transpired that the agent was a baddie and
had in fact reversed the payment. The plaintiff sued the bank for the resulting loss, alleging that it had
made a negligent misstatement regarding the validity of the payment. This claim was formulated wholly
in delict (which is strange because he surely could’ve established that he had contracted with the bank).
The court ​a quo h​ eld that ​Lillicrap r​ equired it to disallow the claim.

On appeal, it was necessary for Cloete JA to discuss the true effect of ​Lillicrap.​ In doing so, he explicitly
​ hich had been adopted by some academics, especially Hutchison, Van
rejected the reading of ​Lillicrap w
Heerden, and Boberg, namely that conduct constituting or causing a negligent breach of contract is
(necessarily) lawful for the purposes of the law of delict if it causes only pure economic loss:

Counsel who represented the *defendant+ ... submit*ed+ that a claim for pure
economic loss is not maintainable in delict when a claim can be maintained in contract.
​ illicrap​. But it is not.
That, wrote counsel, is the effect of L

As Fagan points out in his draft article, ‘Learning to love ​Lillicrap’​ , the implication of this quotation is that,
contrary to what the aforementioned academics have claimed, ‘​Lillicrap d ​ oes not rule out the possibility
that conduct constituting or causing a negligent breach of contract may be wrongful for the purpose of
the law of delict even if the conduct only caused pure economic loss.’ But nor does ​Lillicrap c​ laim the
converse: in other
words, it does not say that conduct constituting a breach of contract and causing pure economic loss ​will
be delictually wrongful. In fact, it should be clear from ​Lillicrap a ​ nd its stringent application in ​Two
Oceans ​that it will be quite difficult for a plaintiff to establish delictual wrongfulness in such cases. So a
single act or omission could constitute a breach of contract and a delict, and the plaintiff may then be
able to claim for either—but if he sues in delict he has some work to do to establish wrongfulness.

The question then arises, ‘In what circumstances will a breach of contract causing pure economic loss be
delictually wrongful?’ The importance of ​Holtzhausen ​is that it gestures at an answer to this question.

Cloete JA states: ​In the present matter the pleadings cover a claim for damages for negligent

misstatement. The
​ plaintiff does not rely on the breach of any contractual obligation which the defendant
or its servants may have owed him, as constituting the negligence for this claim. The plaintiff’s case as it
was presented in evidence was that a right which he had independently of any such contract, was
infringed. The decision in L​ illicrap ​is accordingly of no application.

In simple terms, then, Cloete JA finds for the plaintiff because he has managed to craft a cause of action
which does not rely in any way on a contractual breach—he is suing for consequential loss (a purely
delictual remedy) resulting from a negligent misstatement (which infringes the plaintiff’s non-contractual
right). Compare this to ​Lillicrap ​and ​Two Oceans:​ the plaintiff was in both those cases claiming a
monetary amount in lieu of proper performance, which is a contractual remedy; and accordingly the
plaintiff’s claim failed.

Thus Scott considers the ​Holtzhausen ​decision to provide further support for her contention that the key
in these sorts of cases is simply to ask whether the damages sought are delictual in nature. Cloete JA
stresses that it is quite possible to create a delict from conduct which would constitute a contractual
breach—but the key in doing so is to craft a cause of action not relying on the contract. This, in turn,
means one must not ask for a contractual measure of damages. Anyone who asks for a contractual
measure of damages must have his claim rejected in accordance with the ​Lillicrap r​ ule.
D​EFAMATION

1 Introduction

Our law of defamation is a strange hybrid of both Roman law and English law. It is important to
understand the gist of both these approaches so as to see how our approach has been derived.

Roman roots

In Roman law the ​actio iniuriarum ​initially covered a relatively short list of offences or ‘assaults’. The ​actio
began to expand, but this expansion needed to be controlled. The Romans used the idea of ​contra
bonos mores ​to control this expansion, by saying essentially that only acts ​contra bonos mores ​would be
actionable. This was a matter of public policy or morals.

Over time the ​actio b ​ ecame more sophisticated, as liability was driven forward by the element of ​animus
iniuriandi ​(intention to defame or injure a right of personality). Ultimately ​animus ​became the most
important or decisive element in the ​actio iniuriarum​—in fact it virtually became a ​sufficient ​element for
liability. Thus liability would be imposed for almost any act performed with intent to injure. The ​actio ​thus
protected a huge range of personality interests. It was also not necessary for the plaintiff to show that
there had been any consequential loss: liability would be imposed simply because the defendant’s
conduct had been insulting to the plaintiff and so the plaintiff’s personality rights must be vindicated.

This was the Roman tradition that South Africa inherited. The only significant difference is that in our law
the defendant bears the onus of rebutting ​animus (​ in Roman law the plaintiff had to establish ​animus)​ .

English roots

England has particular torts of libel and slander, which protect only reputation (or ​fama i​ n Roman terms).
Thus, unlike in Roman law, only one, specific interest was protected. The torts were not organised
around any form of fault or any form of loss; it was organised simply around the harm to the right of
reputation. It followed that all the plaintiff had to show was that there was a defamatory publication (which
by definition is a publication which harms one’s reputation). He did not have to show fault or
consequential loss. But this would obviously make it very easy for the plaintiff to found liability. Defences
were therefore developed to balance this very permissive approach.
It was also possible for a plaintiff, if he ultimately founded liability, to plead special damages. So, for
example, if the plaintiff was an attorney he might plead that his loss of reputation caused him to also lose
earnings because of the resulting loss of goodwill. Thus the plaintiff could plead special damages at the
end of proceedings, but this was not an element of the cause of action—no consequential loss had to be
established to found liability in the first place.

Analytical structure

Our law, as we have said, is a strange hybrid of these two traditions. The plaintiff must simply show that

there was: ​a) publication

b) by the defendant
c) of a defamatory statement d)
referring to the plaintiff.

This is exactly what the plaintiff has to prove in English

law.

​ re presumed. The defendant

If the plaintiff can establish these, both wrongfulness and ​animus injuriandi a
can rebut wrongfulness by the following defences:
1. truth in the public interest 2.
fair comment 3. privilege 4.
reasonable publication

The first three defences are straight from English law. The last defence is the novel ​Bogoshi ​defence,
which we will discuss later.

The defendant can also rebut ​animus​, typically by showing that there was a plausible error excluding
malicious intent on his part, for example that he was innocently mistaken about the facts. As we said,
English law has strict liability. Accordingly, the presumption of ​animus ​and the possibility of rebutting this
presumption are not found in English law. As should be clear from what we said above, these
animus​-related issues come to us from Roman law.

The impact of the Constitution

It should be obvious that the law of defamation gives effect to constitutional rights. In particular, it
protects people’s dignity by preventing the spread of horrible statements about them. In ​Khumalo v
Holomisa ​2002 (5) SA 401 (CC)​, O’Regan J held that dignity indeed includes reputation, which is of
course the personality right which in England was always said to be protected by the law of defamation.

But it is a problem in any legal system that protecting dignity via actions for defamation conflicts squarely
with freedom of expression. Not only do individuals like expressing themselves, but democratic society
needs a free market of information. Thus we have the tricky task of trying to balance a fundamental
constitutional right against a cornerstone of democratic society.

2 ​Locus standi,​ meaning, reference and defamatory effect

In this section we look in some detail at the basic things the plaintiff needs to
establish.

Locus standi:​ Who can sue?

In Roman law, the ​actio iniuriarum ​only protected personality interests. It obviously follows that only
natural persons would be able to sue for defamation. But in English law it was possible to claim for
special damages, i.e. economic loss. On this approach, juristic persons should also be able to sue,
because they can suffer economic loss too. This presents an obvious problem for South African law,
which has tried to merge the Roman and English approaches: Can a juristic person sue for defamation or
not?

This issue was addressed in ​Dhlomo NO v Natal Newspapers (Pty) Ltd and Another ​1989 (1) SA 495
(A)​. Mr Dhlomo was suing the defendants in his capacity as secretary-general of Inkatha, which is a
juristic person. The
defendants had published a newspaper article linking Inkatha to serious acts of political violence. Inkatha
said that, because the party had publicly disavowed violence, the article was defamatory. Rumpff CJ
firstly had to decide whether a ​trading ​juristic person can sue for defamation. He referred to the case of ​G
A Fichardt Ltd v The Friend Newspapers Ltd ​1916 AD 1​, in which it had been found that a trading
juristic person can sue for defamation, and further that no special damages need to be proved:

This takes me to the case of G​ A Fichardt, Ltd v The Friend Newspapers, Ltd 1916 AD
1 ​- the first case in which questions of the kind mentioned in the cases referred to
above were discussed in the Appellate Division. The appellant company, a trading
corporation, claimed damages for defamation, alleging that it had been defamed in
headlines to an article which appeared in a newspaper owned and printed by the
respondent company. Innes CJ said: “That the remedy by way of action for libel is open
to a trading company admits of no doubt. Such a body is a juridical p ​ ersona​, a distinct
and separate legal entity duly constituted for trading purposes. It has a business status
and reputation to maintain. And if defamatory statements are made reflecting upon that
status or reputation, an action for the i​ njuria ​will lie. ... In the present case no special
 damages were proved; but that circumstance does not really affect the position. Where
words are defamatory of the business status and reputation of a trading company, I am
not aware of any principle of our law which would make the right of action depend on
proof of special damage.”

Then Rumpff CJ turned to whether a ​non-t​ rading juristic person can sue for defamation. In the case of
Die Spoorbond and Another v South African Railways; Van Heerden and Others v South African
Railways ​1946 AD 999​, it had been held that the defendant, a non-trading juristic person, would be able
to sue but for the fact that it was a state organ (and thus, for policy reasons, must be denied ​locus
standi​). But what was important was that the Court acknowledged in principle that a non-trading juristic
person could sue for defamation. And, in ​Universiteit van Pretoria v Tommie Meyer Films (Edms)
Bpk 1​ 979 (1) SA 441 (A)​, the Court assumed that even though a university is a non-trading juristic
person, it could sue.

Having considered these cases, Rumpff CJ briefly evaluated the position: He said that ​Fichardt w ​ as
contrary to the Roman law position, in that by imposing liability for economic loss it is clear that the law
protects more than just personality rights; but, nevertheless, the ​Fichardt ​position had now become law
(thus English law had triumphed on this score).

Then he said that if a trading juristic person can sue, so should a non-trading juristic person if the
defamation is calculated to cause it financial prejudice. The reason, he said, is that both kinds of juristic
person are capable of suffering financial loss. Rumpff CJ left open the question of whether a juristic
​ here the defamation is ​not c​ alculated to cause it financial prejudice. He also
person has ​locus standi w
left open the question of whether a non-trading juristic person should, despite the general rule he had
just established, be denied standing in any particular case for public policy reasons. In making this
​ ecision.
remark, he has in mind political and State entities, especially the ​Spoorbond d

On a related note, what about natural persons holding political office? This was the issue in ​Argus
Printing & Publishing Co v Esselen’s Estate ​1994 (2) SA 1 (A)​. Judge Esselen had presided in a case
where two black men had killed a white woman. He had imposed very heavy sentences. A newspaper
article described this decision and juxtaposed it with a decision where much lighter sentences had been
imposed in a case where two white men had killed a black man. The implication was that the judges
involved were racially prejudiced and that this prejudice had led to the diverging outcomes. Judge
Esselen sued the defendants for this allegedly defamatory
publication. The defendants excepted ​inter alia ​on the basis that a judge should not be permitted to sue
for defamation based upon criticism of a judgment delivered by him in his official capacity in judicial
proceedings.

Corbett CJ deals a lot with the issue of defamatory meaning, but we are more interested here in the
argument about judges being denied ​locus standi​. Corbett CJ said that the point of departure is that ​all
natural persons can sue for defamation; and thus any such denial would need to be very well justified. In
this regard, the defendants tried to draw an analogy with the ​Spoorbond ​case (in which a public organ
was denied ​locus standi)​ on the basis of three arguments:
1. There are a number of considerations of public policy which constitute good ground for denying a
judge the right to sue for defamation. 2. There are available to a judge alternative remedies
which negative, or at any rate materially reduce,
the need for a right to sue for defamation. 3. There is a significant absence of
precedent for judges suing for damages for defamation.

All three arguments were rejected. The first argument was the most interesting. The defendants stressed
freedom of expression, and said that it is vital to allow criticism of public officials so as to keep them
accountable. In fact, it was argued, there is no other mechanism of keeping judges—who are of course
unelected and have fixed tenure—accountable. If judges could sue for defamation, so the argument
goes, it would have a chilling effect on this public criticism. Corbett CJ rejected this argument, saying that
these reasons could never justify a ​total b ​ an on judges’ suing. The rationale that judges must be held
accountable could never, for example, justify a ban on judges’ suing for a totally unsubstantiated and
malicious attack on their competence. Insofar as limits must be set on the defamatory statements in
respect of which judges may sue, the various defences available to a defendant would strike the right
balance. And, in fact, judges are particularly vulnerable to criticism because they are normally unable to
answer back. Finally, Corbett CJ said there was no observable chilling effect from judge’s being able to
sue, and in fact judges were frequently the subject of scathing criticism.

The defendants had also raised a conflict of interest-type argument, saying that it is undesirable for
judges to be able to go to courts—staffed of course by their colleagues—to resolve their disputes.
Corbett CJ said, however, that judges can litigate in other matters, so there was no reason why they
shouldn’t be allowed to do so in defamation actions.

The second argument was rejected because the alternative remedy alleged, namely contempt of court
proceedings, do not protect judge’s ​personal ​rights. And the third argument was rejected because there
was in fact some precedent for their suing.

The result of the ​Esselen’s Estate ​case is that we have a somewhat asymmetrical regime: ​Spoorbond
totally excluded ​locus standi ​for State organs, but natural persons acting in a State capacity are
apparently free to sue. English law is actually the same. In ​Derbyshire County Council v Times
Newspapers Ltd and Others [​ 1993] AC 534 ​it was held that juristic persons forming part of the State
have no standing; and ​Goldsmith v Bhoyrul ​[1998] 2 WLR 435 ​held similarly in respect of political
parties. But natural persons holding state office can sue in the ordinary way.

Interestingly, the USA has a very different approach. The seminal case is ​New York Times Co. v
Sullivan 3​ 76 U.S. 254 (1964)​, in which it was held that there is generally no liability for any ‘political’
speech in the absence of malice. This includes libels of public figures. Because it is virtually impossible
to prove that there ​was m ​ alice, the result is an effective immunity from liability. This decision obviously
marks a very permissive approach, and
is seen as a victory for the civil rights movement, whose members were freely able to spout their leftist
bullshit because of the ​Sullivan ​decision.

The vast difference between the English and US approaches has led to ‘forum shopping’, where plaintiffs
sue in English courts because the law is so much more favourable to them there. When a book was
written about George W. Bush’s alleged involvement with the Saudi royal family, for example, the book
was published in the US but was withheld in England because of the much stricter laws. It does seem
like the English law’s approach is too harsh if it shuts down legitimate criticism of this kind. South Africa
perhaps ought to take cognisance of this.

Publication: Who can be sued?

Anyone who publishes defamatory material can be sued. If there has been no publication the claimant
will have to pursue another claim, e.g. insult.

‘Publication’ does not have its everyday meaning here; it means ‘communication to a third party’. This
communication can take any form, whether written, oral, or simply by one’s actions. The communication
must be successfully understood, at least eventually, by the third party. Thus one does not ‘publish’ a
statement if one tells it to a deaf person or non-English speaker. Where publication has occurred, it will
only be attributable to a particular defendant if such publication was the natural or probable consequence
of their actions. The classic example of this point is from an old English case: If one sends a postcard
which the postman reads, one will have published it because it was natural or probable that he would do
so; but if one sends a letter in a sealed envelope which the butler opens and reads, one will not have
published it because it was not natural or probable that the butler should be a deviant cunt and read
someone else’s mail.

This means that in the case of written material the author, editor, newspaper owner, printer, publisher (in
the non-technical sense), distributor and library can be liable. For oral material the speaker, broadcaster
and, in some cases, the presenter can be liable. For internet publications the internet service provider will
not in ordinary circumstances be liable, as stated in the Electronic Communications and Transactions Act
of 2002.

Then there are some additional rules: repetition of a libel is a libel. Thus if A says, ‘B says that X is a
sandy vagina’ then A has published the statement ‘X is a sandy vagina’. Also, ​rep ​ ublication by a third
party is attributable to the prior publisher if it was natural and probable, i.e. reasonably foreseeable, that
this would occur. The prior publisher will be liable for the further harm. So, for example, if a celebrity
makes a defamatory statement to a couple of strangers it is probable that the press will report it. The
celebrity will then be liable for the public’s reading the statement in the press report.
 Meaning

We must distinguish between primary and secondary meaning. Primary meaning is the ordinary meaning
of the statement, whether express or implied, which a reasonable person would attribute to it in the
absence of special knowledge. Secondary meaning is innuendo, in other words a meaning attributable to
the statement only if one has special knowledge. For example, in ​Cassidy v Daily Mirror Newspapers
[1929] 2 KB 331 ​a man was photographed with his arm around some slut and the caption said the man
had gotten engaged. The man actually had a wife. Therefore to someone who knew that he was living
with his ‘wife’, i.e. had special knowledge, the implication would be that he either had been cohabiting
with a woman who was not actually his wife (a very deviant thing to do in 1929) or that he was about to
take a second wife (similarly).
As we said, the ordinary meaning of a statement is that meaning, whether express or implied, which a
reasonable person would attribute to the statement in the absence of special knowledge. Muller JA in
Demmers v Wyllie and others ​1980 (1) 835 (A) ​said:

From the above it is clear, I think, that the words 'reasonable person' or 'reasonable
man' referred to in the decisions cited is a person who gives a reasonable meaning to
the words used within the context of the document as a whole and excludes a person
who is prepared to give a meaning to those words which cannot reasonably be
attributed thereto.

This quote is not that revealing, but it does indicate that context is important and that the ‘reasonable
meaning’ is crucial. The reasonable meaning is described as follows (also from the ​Demmers ​judgment):

It is not sufficient that the words may cause the ordinary reasonable reader to come to
such a conclusion. They must cause the ordinary reasonable reader to come to such a
conclusion.

The operative word is ‘must’, and so the ordinary meaning is not that widely
construed.

Even though we are dealing with the so-called reasonable person, this person should not be regarded as
reasonable in every respect. As per Diemont JA in ​Demmers​:

[I]t is wrong to overlook the shortcomings of the average reader - the fact that he does
not concentrate but skims through his newspaper, the fact that he has a capacity for
implication and is prone to draw derogatory inferences, the fact that he is guilty of loose
thinking and will jump to a conclusion more readily than a man trained in the caution of
 the law. ... I​ must picture the Sunday afternoon reader of this newspaper who relaxes

with his feet up and

​ a glass by his side. He is in no mood to subject the article to close
scrutiny and analysis. He is reading for his pleasure; sensational matter is provided for
his entertainment.

Along similar lines, Jansen JA in the same case

said:

In my view abstract and ideal qualities of being balanced, right-thinking and reasonable
- if 'reasonable' be understood in the sense of 'sound of judgment' - should only be
ascribed to the reader and should only come into play (if at all) when the subsequent
question is to be answered, viz. whether the meaning attached to the article by the
average ordinary reader (including the implications seen by him) is to be considered to
be defamatory and therefore actionable.

So the reasonable person has numerous foibles and shortcomings which we must bear in mind. We
must not only accept meanings which strictly and logically follow from the statement; rather, we must
accept ​any ​meaning an average person would attribute to it.

As to the facts of ​Demmers​: A newspaper published the following allegations: (1) Demmers had
purchased land from the Department of Community Development (an organ of the National Party
government); (2) the purchase price was well below the market value; (3) Demmers had made a big
donation to the National Party’s election campaign; and (4) he had sat at the Prime Minister’s table at a
big gala event recently. The meaning, implied but not express, was that Demmers had been able to
secure the land at a low price ​because ​of his
connections to the National Party. In his pleadings, Demmers alleged that the article meant that he had
‘used’ his connections to obtain the land. The key issue was not what the article meant—all the judges
agreed on that—but rather the correct interpretation of the meaning ​which Demmers had pleaded​.

In the court ​a quo​, Didcott J held that the statement was not capable of bearing the meaning alleged in
the pleadings. The article, he said, would only suggest to the ordinary reader that Demmers obtained the
land because he was a valued supporter, i.e. that he was a ​passive ​recipient of the favourable sale. But
it would not suggest that he actively solicited the favour or was actively corrupt or had gotten the land as
consideration for his donation. This meant that Demmers’ case was dismissed because he failed to show
that the article had the meaning alleged—he had not shown that the article meant that he had actively
‘used’ his connections to obtain the land.

On appeal, Muller JA writing for the majority reached a similar

conclusion:
 It is only necessary, I think, to say that, having regard to the manner in which mention
was made of the donation, and the very context in which it appears ... no ordinary and
reasonable reader would have read the article as meaning that the plaintiff’s gift to the
Party had been in consequence of the Department’s favours to him.

Thus the statement did not imply that the sale was a consequence of an actively corrupt relationship. It
did imply that he got the sale because he supported the party, but that, held Muller JA, was not the
meaning pleaded by Demmers:

Counsel for the plaintiff contended that the learned trial Judge erred in his findings
relative to the meaning *pleaded by Demmers+. Crisply stated counsel’s submission
was (I quote from his Heads of Argument): “To ‘use’ one’s party political affiliations to
one’s advantage does not necessarily presuppose an active role on one’s part. By
receiving undue favours knowing that they are extended because of one’s party political

affiliation can amount to passively ‘using’ that affiliation to obtain those favours.” ... I​

agree with the trial Court that as *the plaintiff’s pleadings+ are worded a meaning was
given to the selected parts of the article relied upon by the plaintiff which meaning
attributed to the plaintiff an active role relative to the Department’s favours and not a
mere passive role of knowingly receiving undue favours. I am also of the view that it
would be unfair to the defendant if the plaintiff were permitted to rely on the second of

the aforementioned meanings which was never pleaded. ... ​For the same reasons as

stated by the trial court it is my conclusion that the article in question

​ does not bear any
of the meanings pleaded .... It follows that, in my opinion, judgment was correctly
entered for the defendants.

We can see, then, that it is important not only to attribute a meaning to the allegedly defamatory
statement, but also to interpret the meaning ​pleaded by the plaintiff.​ The two have to match up or the
plaintiff’s claim will fail.

Diemont JA dissented because he interpreted the pleaded meaning differently. He said the
following:
In my view, the learned Judge erred in making the finding that ... the pleadings must
impute an active role to the plaintiff. In everyday parlance the verb “use” does not
necessarily always connote active conduct; it can also refer to a passive act as where a
person “avails himself of something”. ... As I see it, plaintiff’s case is based on the
passive receipt of favours knowing they are being extended because of his politics and
it is in this sense that the particulars of claim should be read, and should so have been
 understood by the defendant.

On this basis Diemont JA, while basically agreeing with the majority’s reading of the article, found for the
plaintiff.

Thus all the judges agreed that the ordinary meaning of the article was that Demmers was a passive
recipient of the sale because of his donations, but not that he had actively solicited the sale. The
disagreement was to the meaning pleaded by Demmers: Deimont JA said the pleaded meaning did
cover this passive relationship (which is why he found in favour of Demmers), but Muller JA said the
pleaded meaning referred only to an active relationship (which is why he found against Demmers).

Reference

Just note that an allegation must refer to the plaintiff ​specifically.​ It can’t just refer to a group of which the
plaintiff is a member. So, for example, if I say, ‘The ANC are a bunch of corrupt liars’ no ANC politician
can sue me.

Defamatory effect

Remember, the law of defamation protects people’s right to reputation or a good name. It is therefore
necessary that the statement be defamatory. This does not mean the plaintiff needs to show that there
has ​actually ​been a negative effect on his reputation as a result of the statement. All that is required is
that the statement is, inherently, an attack on his reputation. To put it another way, we are concerned
with statements which ​tend t​ o lower the person’s reputation, not ones which actually did lower it
(compare this to the ​lex Aquilia​, where proof of loss is actually an element).

So when is a statement defamatory? Our law’s answer to this question is very English. We rely on three

English tests: ​1. Statement must be such as to lower the reputation of the claimant by exposing him to

‘hatred,
contempt or ridicule’: see ​Parmiter v Coupland (​ 1840) 6 M&W 105​. 2. An even older test from
the 18th century: whether the statement would tend to lead others to ‘shun
and avoid’ the plaintiff: see ​Villers v Monsley ​(1769) 95 ER 886​. 3. And more recently the
House of Lords has expanded the test by asking itself whether the statement would tend to lower the
claimant in estimation of ‘right-thinking members of society’: see ​Sim v Stretch [​ 1936] 2 All ER
1237​.
The problem is that all of these tests still float around in case law, but they give different answers. For
example, if I say you are wearing an ugly shirt then that will probably be expose you to ‘ridicule’ within
the meaning of the first test; but it won’t satisfy the third test. In ​Berkoff v Burchill and Another ​[1996] 4
All ER
1008 ​the Court split narrowly on the issue of whether saying someone is ‘hideously ugly’ like
Frankenstein could ever be defamatory. Clearly these questions cannot easily be answered.

The right-thinking person test is normative: it involves asking what a person rightly should think. We now
use the Constitution to give content to this normative standard. In particular, the right-thinking person is
one who embraces constitutional values. The difficulty is that society as a matter of fact simply does not
reflect these views—the Constitution is aspirational and is not meant to codify the views of society. This
leads to problems with, for example, outing homosexuals and stating a person’s HIV status: a person
who embraces constitutional values would not think less of a person upon hearing such information, but
as a matter of fact such information clearly does lower such person’s esteem in the eyes of society. On
the one hand, it seems fair to compensate them because of the fact that their esteem is in fact lowered;
but on the other hand, this would require the courts seemingly to endorse the view that homosexuality or
being HIV positive is a thing which reflects negatively on your reputation.

A recent example of this is the case of ​NM v Smith [​ 2007] ZACC 6​, in which Ms Smith revealed the HIV
status of three women in a book about Patricia de Lille. The women had explicitly asked for their status
not to be disclosed, but for some reason Ms Smith didn’t realise that. When the women’s community
found out, they shunned the women. The Constitutional Court knew that if they treated this as a
defamation case and wanted to find in favour of the women, they would then have to endorse the
community’s prejudice (because they would have to admit that revealing one’s HIV status is defamatory).
They therefore used the right to privacy instead. This works in the ​Smith ​case because the women’s
private information was in fact revealed. But what if the statement is untrue? Then one cannot use the
right to privacy, because it can’t be said that one’s private information is revealed by a false statement.

The next difficulty is the issue of pluralism. In a society like South Africa, what are society’s views? There
just doesn’t seem enough homogeneity to ascribe any one view to the whole of South Africa. How do we
apply the ‘right-thinking person’ test when there are a multiplicity of right-thinking persons who hold very
different views? This was basically the issue in ​Mohamed and Another v Jassiem ​1996 (1) SA 673 (A)​.
The defendant had published the statement that the plaintiff was an Ahmadi sympathiser, which basically
meant that he was regarded by Muslims as an apostate. But non-Muslims wouldn’t care a fig about such
an allegation. So does the statement lower the plaintiff’s esteem or not? If we have regard specifically to
the Cape Muslim community, then the answer is clearly ‘Yes’. But if we have regard to South African
society at large then clearly the answer is ‘No’. So, then, can we limit the enquiry only to a sector of the
population? The Appellate Division’s answer was that you can indeed. On this basis, the statement ​in
casu w​ as found to be defamatory.
Scott approves of this home-grown rule, but notes that it only words for sectors of society which are
themselves obviously homogeneous, like a religious or cultural group, or geographically united. Thus it
would not apply, say, to vegetarians or readers of gossip magazines.

The last judgment we will consider relating to defamatory effect is ​Le Roux and Others v Dey ​2010 (4)
SA 210 (SCA)​. We encountered this case briefly last semester. It deals with quite new issues relating to
defamatory effect—specifically, the defamatory effect of jokes—so it is an interesting judgment which
breaks new ground. At the same time, the case is to be heard on appeal by the Constitutional Court, so it
might be overruled. The facts, as we know, are as follows: Three schoolboys manipulated a photograph
so that the faces of their principal and deputy principal were put onto the bodies of certain nude
bodybuilders who were giving each other vigorous hand-jobs. The deputy principal decided to sue on the
basis of the harm to his reputation and his dignity. There were two judgments from the SCA: a majority
judgment by Harms DP, and a judgment by
Griesel AJA which concurs in Harms DP’s order but diverges markedly from it on the issue of the photo’s
defamatory effect.

Harms DP said the following about the defamatory effect of jokes, drawing a distinction between two
possible types:

It appears to me that if a publication is objectively and in the circumstances in jest it

may not be defamatory. But there is a clear line. A joke at the expense of someone -
making someone the butt of a degrading joke - is likely to be interpreted as defamatory.
A joke at which the subject can laugh will usually be inoffensive.

Harms DP concluded that the defendants’ joke was of the former kind—it was not funny and was simply
aimed at ridiculing the plaintiff. The judge was at pains to point out that it was not defamatory to suggest
that the plaintiff engaged in ​homosexual ​actions, but nevertheless held that it was defamatory:

I therefore conclude that the photo was defamatory of the plaintiff and that its
publication was wrongful. It matters not for this conclusion what his sexual orientation
was or what the sex of the other person on the photo was because it deals with his
sexual orientation in a derogatory manner. It ridicules him, his moral values and
disrespects his person.

Griesel AJA disagreed. He

said:

It seems to me that this was what the defendants were trying to convey when pressed
to explain the joke to the court below: they referred to the incongruity ('teenstelling')
 created by the manipulated picture. The defendants said that what made the picture so
funny - in their eyes and in the eyes of their fellow learners who saw it - was not the fact
that it was so close to the truth, but that it was so very far removed from reality.

Griesel AJA’s point is that the defendants were not claiming that the plaintiff actually engaged in such
activities. In fact, the humour derived from the very fact that it was so ​unlikely ​that the plaintiff would ever
do so. In this way, Griesel AJA suggests that Harms DP has mischaracterised the nature of the joke. He
goes on to say that the meaning attached to the photo by an outsider, unaware of the photo’s origin or

context, ought to be ignored: ​The present situation is analogous to the defamation relied upon in

Mohamed v Jassiem​. It ​would be inappropriate in this case to postulate the reactions of 'ordinary
right-thinking persons generally', instead of restricting the inquiry to the microcosm comprising the
particular school community and examining the way in which they understood the picture. Applying that
test, the plaintiff has failed to prove, in my view, that the meaning conveyed by the picture is the one
relied on in the particulars of claim. It follows that the claim based on defamation fails at the first stage...

So the point is that the relevant meaning is the meaning that would be attached to the photo by the
audience for whom it was intended—not some abstract person who is unaware of the context. And, when
one looks at it from the perspective of that limited audience, it is clear that this was just a bunch of
schoolboys gently poking fun at their deputy principal without meaning to cause any harm or make any
allegations about his moral worth.
Thus Griesel AJA holds that the defamation claim fails because the plaintiff has failed to establish that
the statement had a defamatory meaning. But this does not dispose of the matter. In fact, Griesel AJA
ultimately concurs in Harms DP’s judgment. The reason is that the plaintiff has another cause of action
available to him, namely one based on ​iniuria (​ recall that the plaintiff alleged that the photo had harmed
his reputation ​and ​his dignity):

Turning to the claim based on the impairment of the plaintiff’s dignity, the requisites for
this cause of action are ‘firmly entrenched in our law’ and do not require repetition.
Essentially, the concept of d ​ ignitas ​is a subjective one. In the present matter, the
plaintiff testified as to how he, subjectively, experienced the picture and its aftermath
and how it negatively affected his own feelings of self-respect and dignity. That
evidence was accepted by the trial court and its findings in that regard have not been
assailed on appeal. For the reasons given by my colleague, I agree that it is not open to
the defendants to rely on jest as a defence against the claim based on i​ niuria​. It does
not protect them in these circumstances where they foresaw the possibility that their
attempts at humour might be perceived as insulting, offensive or degrading by the
plaintiff.

The fact that the plaintiff had two possible causes of action here—or, put differently, the fact that the
publication of a statement may be actionable even if it is not defamatory—is an interesting feature of our
law. In English law, such a situation is not possible; if the statement is not defamatory the plaintiff has no
recourse. But because of our Roman roots, a plaintiff may in South Africa found liability based on ​iniuria​.
The result is that our courts can and should be more fastidious about what counts as defamation. On the
facts of this case, Griesel AJA is clearly correct: this was a harmless joke which does not amount to
defamation; but it may well be insulting or harmful to the plaintiff’s dignity.

The presumptions arising

As we have said, two presumptions arise once the plaintiff has successfully established that there was
publication of defamatory matter by the defendant referring to the plaintiff: ​animus iniuriandi a ​ nd
wrongfulness. There is not strict liability in defamation (fault in the form of ​animus i​ s a requirement), but
the onus shifts to the defendant to prove that that requirement is ​not p ​ resent. The defendant must, in
doing so, rely on the defences excluding ​animus​, which derive from the Roman law tradition. The status
and content of these defences is relatively unclear. The traditional English defences excluding
wrongfulness, by contrast, are very well established and clear cut. We accordingly start with these.

3 Defences excluding wrongfulness

Justification a.k.a. truth for the public benefit

As the heading suggests, this defence requires proof of two

elements:
1. the statement was true; and 2. its
publication was for the public benefit.

In English law the second element is not required. Thus South African law can be said to provide less
protection for truth-telling (because you need to prove more to establish the defence). This is a policy
decision
that each jurisdiction must make so as to strike an appropriate balance between, on the one hand, the
public’s interest in learning the truth (a freedom of expression matter), and, on the other, not publishing
defamatory things about people (a matter of preserving dignity). The Romans had a limited number of
discrete categories where truth was a defence; but there was no general defence of truth. Thus our law
strikes something of a compromise between the Roman and English positions; we have a general
defence of truth but we impose an additional requirement to found it. De Villiers CJ in ​Graham v Ker
(1891-1892) 9 SC 185 ​suggests the motivation behind our position:

As a general principle, I take it to be for the public benefit that the truth as to the
 character or conduct of individuals should be known. But the worst characters
sometimes reform, and some of the inducements to reformation would be removed if
stories as to past transgressions could with impunity be raked up after a long lapse of
time. Public interest, as I conceive it, would suffer rather than benefit from any
unnecessary reviving of forgotten scandals.

Clearly both of the defence’s requirements are objective. In fact, there is no subjective element to this
defence at all: even if the defendant has malicious intent (so, say, he just wants to humiliate the plaintiff
and has no interest at all in keeping the public informed of the truth), this doesn’t defeat the defence.
Thus, justification is an ‘absolute defence’; it is not defeated by an improper motive. This derives from
English law and obviously gives reasonably strong protection to freedom of expression.

What exactly has to be justified for the defence to succeed? It can be complicated to identify what exactly
needs to be proven to be true and in the public interest. In a sense, it depends on the broadness of the
statement. If there is a narrow factual assertion, that assertion must be proved to be justified. But if there
is a broad range of factual assertions, it is the broad thrust of those assertions (their ‘substantial truth’)
which must be justified, not literally each individual assertion. The case demonstrating this is ​Johnson v
Rand Daily Mails ​1928 AD 190​. The defendant published a letter which said that the plaintiff’s lunch tent
at a recent agricultural expo was ‘positively disgraceful’ and made a range of specific factual allegations
in this regard. For example, the letter said that food was littered on the floor, no napkins were given out,
and ‘one had to turn back the greasy table cloths to save one's clothes from contact with it’. The
justification defence was advanced successfully in the court ​a quo​, and was the subject of the appeal
before the Appellate Division. The plaintiff basically argued that truth has not been proved in respect of
the specific factual allegations. While admitting that the defendant had failed to prove that one actually
had to turn back the table cloths because they were so dirty, the Court held that this did not scupper the
defence; all that he must prove is that the ‘sting’ of the allegations (their general thrust or gist) is true:

In cases where a man is charged with fraud or dishonesty or where criminal acts are
attributed to him, the Court no doubt will exact from the defendant strict proof of every
charge, but where incompetency is alleged of a caterer or where matters are described
which will not necessarily appear the same to two different persons, the defendant is
not required to justify every detail when in fact the gravamen of the charge has been
amply justified.

In short, the defendant simply had to prove that the lunch tent was
dirty.

As we have already suggested above, if the published statement is ‘I hear X is a thief’, the defendant will
have to prove the statement ‘X is a thief’ in order to justify the publication. So if you repeat gossip, you
must show that the original statement is true—not simply that it is true that you ​heard ​the gossip or that it
is true that the
statement was ​rumoured​. This is a fundamental rule of defamation, because without it newspapers would
be able to avoid liability for defamation pathetically easily, simply by prefixing any outrageous claim with,
‘It has been said that ...’.

Fair comment

This defence is very closely related to ​individuals’ ​right to express themselves; it is not (like justification)
directed generally at ensuring a free flow of ideas for the good of society at large. It is also English in
origin.

The case of ​Crawford v Albu ​1917 AD 102 ​remains the leading case on fair comment in our law. (In the
case, it is held that the defence rebuts ​animus.​ This is clearly no longer the case, but it tells us something
interesting about the evolution of the defences in our law. We discuss this later.) The four requirements
for fair comment are as follows:

1. the statement was a comment

The statement, in other words, was an opinion or a deduction from established facts, not a factual
allegation itself. This distinction seems relatively straightforward, but in practice it becomes blurred. An
easy example is to compare ‘X is a convicted murderer’, a factual allegation, to ‘X is a convicted
murderer and therefore a disgrace to humanity’, where the latter part is clearly an opinion. But a trickier
case was at issue in ​Crawford v Albu.​ The plaintiff was one of nine men who were forcibly deported for
their role in a labour movement’s civil disobedience campaign on the Witwatersrand. The defendant said
at a meeting of the Chamber of Mines: ‘All this strife has been caused by men who are fanatics—no they
are not fanatics—they are criminals in the fullest sense of the word.’ The defendant argued fair comment
as a defence, which first of all required the judges to decide whether this was a factual allegation or a
comment. Innes CJ held that the words were a statement of fact (but that even if they were a comment,
they were unfair). De Villiers AJA held that the words were a comment (but were based on untrue facts,
or alternatively were unfair). And Solomon JA held that the words were a comment (which was fair). The
allegation that they were criminals was clearly fact given that they had been convicted, but the allegation
that they were fanatics is much trickier (perhaps especially because this allegation occurred in an
impromptu speech in which the defendant backtracked). The point to take from this case is simply that
the distinction between fact and comment is very difficult to draw, so that even learned judges cannot
agree. Scott says that in some cases the distinction just doesn’t make any sense.

2. the statement was a matter of public interest

This requirement will be established if the statement is political speech or a literature, restaurant, etc.
review. This is a very broad criterion, as it must be to adequately protect free speech.
 3. the statement was based on true facts

The statement must simply give a view on facts which are already well-known, accepted as true, or at
least in the public domain. (If one cannot establish this one may still be able to use justification.) The
public domain includes any book, restaurant, etc. which is the subject of a review. In ​Johnson v Beckett
and another ​1992 (1) SA 762 (A) ​a newspaper article said that the plaintiff, himself a journalist, was
‘increasingly depraved’ and, basically, was a really shitty writer. The defendant didn’t have to give
examples of the plaintiff’s prose to ​justify ​his defamatory statement; the plaintiff’s prose was in the public
domain and therefore all that was relevant was the fairness of the comment deduced from that prose. If
you are making a deduction from facts ​not ​in the
public domain, you will be liable for the publication of those facts (and then, unlike Beckett, you would
have to raise a defence excluding liability therefor).

4. the comment was fair

This is the most troubling element of the fair comment defence. ​Johnson v Beckett ​is the leading case.
It was stated, per Corbett CJ, that a comment will be fair if

objectively speaking it qualified as an honest, genuine (though possibly exaggerated or

prejudiced) expression of opinion relevant to the facts upon which it was based, and
not disclosing malice.

And per Harms AJA:

The word ‘fair’ is used in a specialised sense and means that the opinion must be an
opinion which a fair man, however extreme his views may be, might honestly have,
even if the views are prejudiced. It must, objectively speaking, qualify as a genuine
expression of opinion which does not ‘disclose in itself actual malice’.

​ 005 (4) SA 515 (SCA)​, are that

Thus the requirements for fairness, reaffirmed in ​Hardaker v Philips 2
the comment:
a. was honest; b. was relevant to the facts upon which it was based; c. did not
disclose malice; and d. was one which a fair man, however extreme or
prejudiced views, might make.

Clearly requirement (d) is less demanding than a reasonable person test. So, for example, saying ‘Y is a
woman and therefore is not fit to be a law professor’ is clearly unreasonable; but it is a statement which a
fair but prejudiced man might make. And in ​Johnson v Beckett​, Corbett CJ made clear that Beckett’s
defamatory article was really lame; but he still thought it was fair:

To sum up my overall view of these writings, I would say that they are bad, both in style
and content; they trivialise important matters in a manner no doubt intended to be
humorous but seldom achieving this; the language used is often ungrammatical and is
replete with slang, much of it derived from Afrikaans; certain of the writing is in
extremely poor taste ...; and there is throughout the writings a recurring theme of sexual
suggestiveness of the crude variety. I say this about the writings not to moralise but in
order to answer the question whether the comment published in the Frontline article
was fair .... In my view, it was.

This lower standard is necessary because freedom of expression means being able to say things even if
they are not objectively reasonable.

Requirement (c) shows that fair comment is clearly not an absolute defence; it can be defeated by
showing an improper motive on the part of the defendant. In practice it is very hard to show an improper
motive, but it is interesting because intention is being used in the wrongfulness enquiry. This is
potentially a confusion between objective and subjective elements.

Privilege
The rules and terminology relating to this defence are also derived from English law. But it is different to
the previous two defences in that it relates to the ​context ​in which the defamatory statement was made,
not its content. This is therefore a very useful defence, which can be used even if the content of the
statement is indefensible. Specifically, the defence excludes unlawfulness if the statement was published
on a privileged occasion. The defence was received into our law in ​De Waal v Ziervogel 1 ​ 938 AD 112​.
(Watermeyer CJ clearly says that the defence rebuts ​animus,​ but as we’ve said this has now changed.)

There are two species of privilege. Firstly, absolute privilege is when ​any s​ tatement published on the
privileged occasion will be lawful. There is only one real example of this, namely parliamentary debates.
This has a clear policy basis. The second, more common, form of privilege is qualified privilege. This is
when only certain statements published on the privileged occasion will be lawful. There are many specific
sub-types of qualified privilege, discussed in what follows.

The case of ​May v Udwin ​1981 (1) SA 1 (A) ​recognised that statements made in the course of judicial or
quasi- judicial proceedings were privileged. The case dealt with a judge, so it was laid down as ​ratio t​ hat
any defamatory statement made at such proceedings by a judge or magistrate is presumed to be lawful.
This was based on the noted antiquarian Joubert JA’s having a fat wank about the Roman and
Roman-Dutch sources. This presumption is probably too protective of judges, although it can be trumped
by proof of malice or improper motive (which is why the privilege remains qualified, not absolute). The
case also advanced ​obiter t​ he following rule in respect of litigants, witnesses and counsel: the
defamatory statement is lawful only if it is relevant to the matter before the court or is founded on
evidence or circumstances before the court.

There is a second, more general sub-type of qualified privilege: A defamatory statement is lawful when it
is communicated by the defendant in the discharge of a moral or social or legal duty or in the furtherance
of a legitimate interest, to a listener or listeners who have a corresponding duty or interest in receiving it.
This rule was given its classic statement by Lord Atkinson in the English case of ​Adam v Ward ​[1917]
AC 309 (HL)​, which was been quoted with approval many times, including in ​Mohamed v Jassiem ​and
De Waal v Ziervogel ​(see below).

Qualified privilege can be lost, as we said, if the plaintiff proves that the statement was made with malice
or improper motive. Thus the defence is established objectively but can be subjectively displaced.

In ​De Waal v Ziervogel t​ he plaintiff, a church minister, had been banging the defendant’s wife. The
defendant’s wife confessed this to the defendant some years later, also saying that the first time they had
had sex the plaintiff had raped her. The parties managed to maintain something of a working relationship
even after this. But shortly before the wife’s death four years later, it seems that she revealed some
things to the defendant which ‘made a profound impression on him notwithstanding his previous
knowledge of her infidelity’. Once his wife had died, the defendant decided he was going to fuck that shit
up. He made various allegations against the plaintiff to the church elders and to two other people. The
plaintiff sued in defamation for the publication of these statements. The statements were clearly
defamatory, but the defendant raised the defence of qualified privilege. (He surely could have used
justification, but did not—perhaps so that he was not compelled to reveal the details of his wife’s naughty
behaviour.)

Many judgments were delivered in the Appellate Division, but we are concerned with the leading
judgment of Watermeyer CJ. He held on the basis of the ​Adam v Ward ​rule, stated above, that the
plaintiff’s publication to the church elders was lawful: the plaintiff, as a community leader (he was a
school headmaster) and a member of the congregation, had a duty to reveal material facts about the
moral conduct of the minister; and the
church elders had a duty to receive it. The plaintiff averred in response that the privilege was abused
because the allegations were made with malice, but Watermeyer CJ held that he had failed to prove this.
Ultimately the Court found in favour of the plaintiff even so, because the defendant had not been under a
duty to publish the statements to the two other people, who were not in any position of authority in the
church.

Reasonable publication (the ​Bogoshi

defence)

The case of ​National Media Ltd and Others v Bogoshi [​ 1998] ZASCA 94 ​created a fourth defence in
our law. The plaintiff sued in respect of a series of defamatory articles that had been published in ​City
Press​. The defendants were the publisher, editor, owner, distributor and printer of the newspaper. Initially
the defendants had relied on the justification defence, but the defendants later realised that they would
not be able to establish the truth of the statements. They accordingly could not rely on justification and
had to amend their pleadings and introduce three new arguments. Only the third of these is relevant to
us. This argument was ‘that the publication of the articles was lawful and protected under the freedom of
speech and expression clause in ... the interim Constitution.’ Eloff JP in the court ​a quo ​had rejected this
argument on exception, and the defendants appealed. The basic issue was whether this defence could
ever succeed.

In support of this argument, the defendants made the following

allegations:
▪ the defendants did not know that the statement was false at the time it was
published;
▪ the defendants were not reckless in publishing it;
▪ the defendants were not negligent in publishing it;
▪ it was objectively reasonable of the plaintiff to publish it;
▪ in publishing it, the defendants had no ​animus iniuriandi​; and
▪ publication of the statement was in the public interest.

Clearly this is a slightly strange defence—both ​animus ​and lawfulness elements are present. So is the
defence meant to exclude ​animus ​or wrongfulness? This confusion is perhaps one of the reasons the
judgment lends itself to differing interpretations (see below). And yet Hefer JA immediately stated that he
considered this to be a defence excluding unlawfulness:

The nub of the defence is [that] [t]he publication of the articles ... was lawful and
constitutionally protected by reason of the circumstances alleged in the preceding
paragraphs. Leaving constitutional issues aside for the moment, the question is
whether the allegations in the preceding paragraphs legally justify the averment of
lawfulness ....

So it should be absolutely clear that the defence which emerges from the case goes to lawfulness, not
animus​. We will return to this issue later.

As to Hefer JA’s substantive deliberations, they were based on the common-law and comparative
law—not the Constitution, despite the fact that the defendants had framed their argument in
constitutional terms. This has prompted some criticism of the judgment.

Anyway, the first major point Hefer JA makes is that the defendants’ defence is entirely novel and without
precedent in our law; but that this does not mean the defence cannot succeed:

I am not aware of a previous case in which a plea along these lines was considered
before by a court in this country. But it is hardly necessary to add that the defences
available to a
defendant in a defamation action do not constitute a n ​ umerus clausus​. In our law the
lawfulness of a harmful act or omission is determined by the application of a general
criterion of reasonableness based on considerations of fairness, morality, policy and
the Court's perception of the legal convictions of the community.

Hefer JA then makes the vital point that, because of the fundamental importance of press freedom for
democracy, our existing law (and specifically the existing stereotyped defences excluding unlawfulness)
does not give enough protection to freedom of expression. On the one hand, he says, there is no public
interest in disseminating falsehoods. On the other hand:

[W]e must not forget that it is the right, and indeed a vital function, of the press to make
available to the community information and criticism about every aspect of public,
political, social and economic activity and thus to contribute to the formation of public
opinion. The press and the rest of the media provide the means by which useful, and
sometimes vital, information about the daily affairs of the nation is conveyed to its
citizens - from the highest to the lowest ranks. Conversely, the press often becomes the
voice of the people - their means to convey their concerns to their fellow citizens, to
officialdom and to government.

Then Hefer JA refers to comparative law, which is an important pillar of his argument. He referred to the
(at that stage unreported) judgment of the English Court of Appeal in ​Reynolds v Times Newspapers
Ltd​, where on similar facts (a falsehood had been published but allegedly reasonably so) a novel media
defence was recognised. The same approach, said Hefer JA, had been adopted in Australia and New
Zealand. On this basis, Hefer JA states the ‘reasonable publication’ defence:

In my judgment we must adopt this approach by stating that the publication in the press
of false defamatory allegations of fact will not be regarded as unlawful if, upon a
consideration of all the circumstances of the case, it is found to have been reasonable
to publish the particular facts in the particular way and at the particular time.

The relevant factors in this reasonableness enquiry are described as

follows:

In considering the reasonableness of the publication account must obviously be taken

of the nature, extent and tone of the allegations. We know, for instance, that greater
 latitude is usually allowed in respect of political discussion ... and that the tone in which
a newspaper article is written, or the way in which it is presented, sometimes provides
additional, and perhaps unnecessary, sting. What will also figure prominently is the
nature of the information on which the allegations were based and the reliability of their

​
source, as well as the steps taken to verify the information. ... [Other relevant factors

are] the opportunity given to the person concerned to respond, and ​the need to publish
before establishing the truth in a positive manner [i.e. the urgency of publication] also
come to mind.

This list is not meant to be exhaustive or

definitive.

The result of this new defence is that Hefer JA finds that the defendants’ amendment to their pleadings is
not excipiable. Thus he upholds the appeal.
Scott says that this new defence of reasonable publication, as Hefer JA suggests, clearly accords with
parallel developments in the common-law world around that time. In fact, the list of relevant factors given
by Hefer JA is almost identical to that given in ​Reynolds​.

But there are two outstanding questions: Firstly, who or what is ‘the press’ or ‘the media’? Only media
defendants are entitled to rely on the defence, so this is a vital question. Secondly, what impact does
Bogoshi ​have on ​animus iniuriandi​? This latter question will be answered at the end of the following
section.

4 ​Animus iniuriandi

Roman law

There is absolutely no doubt that ​animus iniuriandi w ​ as a necessary element in every ​iniuria ​in Roman
law. In fact, because there was no element of wrongfulness in Roman law, ​animus ​drove all the major
legal developments. This seems strange to us, because in modern South African law wrongfulness is
dominant. But many of the propositions which we now think of in terms of wrongfulness would’ve been
expressed by the Romans in terms of ​animus.​ For example, a magistrate who whips a criminal as
punishment for his crime was not liable in Roman law because it was said that he had no ​animus
iniuriandi​. But we would clearly say that the reason was that it was not wrongful.

To repeat, there is no doubt at all that ​animus iniuriandi ​was always necessary in Roman law to establish
liability. But what was not clear was what ​animus iniuriandi a ​ ctually ​meant​. It was clear that the presence
of malice could turn an otherwise lawful act into an unlawful act: for example, if it was proven that the
magistrate decided to whip the criminal purely out of personal contempt for him, he would be liable. But
the reverse was not clearly true. It is not clear, in other words, whether an otherwise unlawful act could
be successfully defended by showing that the defendant acted without any malice.

So, is merely intending to perform an act all that ​animus iniuriandi r​ equires? Or does it also require that
one had a ​wrongful i​ ntention; or, put differently, that one’s intention was accompanied by consciousness
or knowledge of wrongfulness; or, put differently again, that it was actuated by malice? This distinction
between bare intention and ‘coloured’ intention, i.e. bare intention coupled with knowledge of
wrongfulness, should be familiar from first semester.

There are conflicting examples in Roman law which make it hard to decide what Roman law actually
required. The following are all examples drawn from the Roman texts:
▪ A shoemaker pokes out the eye of an apprentice studying under him, because the apprentice has
done his work badly. The ​actio iniuriarum w​ as said not to lie, because the shoemaker struck the blow
​ requirement, because in
not intending to insult but to correct and instruct. This suggests malice ​is a
the absence of malice the shoemaker is not liable.
▪ If, when I wish to punch my slave, I involuntarily hit you standing next to him. The ​actio iniuriarum
was said not to lie. This example could mean that malice is a requirement, or it could simply mean
that hitting someone involuntarily does not even show a bare intention to hit him.
▪ If someone strikes another in jest or during a contest, he will not be liable to the action on insult. If
someone beats a freeman, thinking that he is a slave, the position is that he is not liable to the ​actio
iniuriarum​. Again these are tricky examples—they could show that malice is a requirement or simply
that there is no bare intention. But the most anomalous example is the following:
▪ If someone accosts young women who are dressed in slave’s clothing his offence is rather minor;
even more so if a woman be in prostitute’s dress and not that of a respectable married woman. Still, if
a woman is not in the dress of a matron and someone accosts her, he will nevertheless be liable for
​ he fact that such a person will still be liable is anomalous because there is a total lack of
iniuria. T
malice (because accosting a slave or prostitute was perfectly acceptable). This suggests malice was
not a​ requirement.

The texts are difficult. All are consistent with the view that the defendant must act intentionally, but they
appear to disagree about the need for a specifically ​insulting ​or ​wrongful ​intention. This controversy has
been bequeathed to us, and we will see in the remainder of this section how changeable and confusing
the consciousness of wrongfulness requirement—if it is in fact a requirement—is.

Consider some more modern examples exhibiting the distinction: X intentionally publishes a defamatory
article, falsely believing that the publication was lawful. Is he liable or not? This depends on whether
mere intention to defame is enough, or whether that intention must be coupled with knowledge of
wrongfulness. Or, X is a journalist who makes up a fictional character with an outrageous, made-up
name, and says various horrible things about this character. Y, coincidentally and unbeknownst to X,
shares this character’s name. The article is defamatory of Y because the readers will understand the
defamatory allegations to relate to him. Has X acted unlawfully? If malice is required for ​animus​, then he
has not. In fact, this is such an unusual case that even if malice is ​not r​ equired X has not acted
unlawfully—he didn’t even have the bare intention to defame Y. More commonly, though, there will be
bare intention but no malice.

Despite the controversy in Roman law which the civilian tradition inherited, in the civilian tradition ​animus
does appear to have been understood to include wrongful intention, although this was generally
presumed in the plaintiff’s favour. Thus there was in ​most ​cases a reverse onus on the defendant to
rebut the presumption by establishing that the statement was made in jest or ​rixa (​ in the heat of
argument). In other cases, however, the presumption would be reversed: where there was an objectively
legitimate purpose to the publication, the presumption would be that the defendant had acted with a good
intention, and the plaintiff had to rebut this. So, for example, if the defendant had been under a legal duty
to publish the statement, the plaintiff bears the onus.

The reverse onus and the possibility of subjective and objective defences should remind you of the
stereotyped defences excluding unlawfulness and the defences excluding intention.

Early South African law

We start with the case of ​Mackay v Philip (​ 1828-1849) 1 Menz 455​, which shows the strong civilian
influence in our early law. The defendant had written a book in which he had defamed the plaintiff by
saying that he treated his servants very badly. The defendant raised the defence that he had acted
without malice, in that he thought the statement was true. (So this is like the reasonable publication
defence except it excludes ​animus,​ not unlawfulness.) The following was stated in the judgment:

Both common sense and the law of this colony dictate that the existence or absence of
the ​animus injuriandi ​must be gathered from the circumstances of each particular case;
and the Court held that the falsehood of the statements injurious to the character of a
plaintiff, which have been published by a defendant, is ... sufficient to prove such an
animus injuriandi​, direct or indirect, as is required to render the defendant liable in,
damages, unless he shall be able to prove some special circumstance sufficient to
negative the presumption
of the existence of such a ​ nimus injuriandi​, and to prove that, in publishing injurious
statements, not consistent with truth, he was actuated by some motive, which is in law
held sufficient to excuse the error into which the defendant has fallen. The defendant
has failed to do this, and the defence which he has attempted to found on the alleged
absence of all a​ nimus injuriandi ​on his part cannot avail him.
This passage clearly shows the presumptions which operated in our law at the time: the plaintiff must
show that the defendant published a false defamatory statement, upon which a presumption of ​animus
arises which the defendant bears the onus of rebutting. As we have just said, these presumptions were
present in the civilian tradition. So, in short, our law was at this stage still very Roman.

The English influence on our law

But, under English influence, our law changed a great deal in the century following ​Mackay v Phillips​.
Strict liability was a fundamental feature of English law, and, as such, defences excluding ​animus ​did not
exist there. The English stereotyped defences all excluded unlawfulness. As English law influenced our
own, these stereotyped defences began to overwhelm the ​animus-​ geared defences which we inherited
from the civilian tradition.

This process happened in stages. First, the substance of the English defences was received, but these
were seen as techniques to rebut ​animus.​ Remember that in ​De Waal v Ziervogel ​Watermeyer CJ
clearly understood privilege to be a defence excluding ​animus​. But gradually the defences came to be
seen as excluding unlawfulness rather than ​animus​. And, like in English law, the defences came to be
seen as a closed list​10 ​(whereas ​animus c​ ould be excluded in any number of ways, of which the defences
were simply well- established methods).

Tothill v Foster 1​ 925 TPD 857 ​exhibits the changes well. There was an association which awarded sick
pay to its members, provided that the member obtained a doctor’s note certifying that he was ill. But, in
the interest of preserving good morals, no pay was awarded if the member had contracted a venereal
disease. The defendant was a doctor, who one day went to go and deliver to the head of the association
an envelope containing various members’ medical certificates. There was no certificate for the plaintiff,
because he had been ill with syphilis. The doctor scribbled a note on the envelope explaining this. But
the housemaid read the note—and thus the defendant had published to her a statement defamatory of
the plaintiff.

The Court accepted that the defendant had no idea the housemaid would read the note, and accordingly
that he acted without malice. Nevertheless, this was held to be irrelevant. The defence upon which the
defendant had relied (viz. privilege) had not been established, and this fact alone meant that he was
liable:

Now, I am prepared to accept the conclusion, which the evidence seems to me to

justify, that the defendant had no personal feeling against Foster and that there was no
personal malice on his part: ... It is quite clear that there was no intention on his part to
injure the plaintiff in any way. What he did was the result of gross negligence and the
result of not realising that, in doing what he did, he might be causing the plaintiff some
 injury because Louisa Ahlee [the housemaid] might see and read these words and he
might thereby be publishing a defamatory statement about Foster. ... [But] on the
principle laid down by this Court ... it seems to me clear that the defendant having failed
to prove that the publication

10 ​
​ as
But note how the position had changed when ​Bogoshi w

heard.
to Louisa was a privileged occasion, wholly fails in his defence, and that the only
question that remains is the question of damages.

The point is simply that the absence of malice had no relevance in law to whether the defendant had
managed to rebut the presumptions against him. All that mattered was whether privilege had been
established. In other words, all that mattered was whether the publication was ​lawful.​ Thus ​animus ​had
been ass-fucked out of existence by the influence of English law. Scott says that ​Tothill v Foster ​is the
high water mark of English law’s influence on our own. Indeed, the case almost uses strict liability.

Maisel v Van Naeren:​ The resurgence of ​animus ​for private

defendants

What we have said until now applied to ​all ​defendants. But then there was a fork in the road: media
defendants came to be treated differently from private defendants. This distinction must be borne in mind
throughout what follows.

First, private defendants: The case of ​Maisel v Van Naeren ​1960 (4) SA 836 (C)​, although a provincial
decision, had a massive influence on our legal development. The defendant was a landlord, and the
plaintiff his tenant. The defendant thought his block of flats fell within the ambit of the Rates Act, on which
basis he lodged a complaint with the Chairman of the Rates Board in which he said, basically, that the
plaintiff was a bad tenant. The problem was that the block of flats didn’t actually fall under the Rates Act,
and therefore the defamatory statement the defendant had made could not be defended on the grounds
of privilege—there was in fact no duty upon the defendant to inform the Chairman of the plaintiff’s
failings. Nonetheless, it was held that the defendant’s ​genuine belief t​ hat he was in a privileged situation
was enough to excuse him from liability, because it excludes ​animus iniuriandi​. In other words, ​animus
iniuriandi ​was now clearly a requirement, and it included consciousness of wrongfulness. This was later
accepted by the Appellate Division in ​O’Malley (​ see below).

Thus, bizarrely, ​Mackay v Phillips ​had been fundamentally altered by the time ​Tothill v Foster ​was heard.
But then our law did another about-face in ​Maisel v Van Naeran a ​ nd returned to ​Mackay.​ The important
result was that absence of ​animus— ​ which includes consciousness of wrongfulness—was re-established
as a defence.
 The strict liability of the press

But ​Maisel v Van Naeren o​ nly gives half the picture. It must be understood alongside another series of
cases which established the strict liability of media defendants. The origin of this strict liability was an
obiter dictum ​per Rumpff CJ in ​SAUK v O’Malley ​1977 (3) SA 394 (A)​. After a review of early 20​th
century cases, he said:

The decisions in our law, referred to above, are clearly consistent with the English
common law under which liability for libel is based on publication, not on a particular
intent, and whereby the owner, printer, publisher and editor a newspaper are liable for
libel, although those persons were unaware of the libel. The acceptance in our law of
this principle creates a situation where strict liability in respect of such persons is
recognized, and criticism that the principle of strict liability would be incompatible with
our currently accepted understanding of ​animus injuriandi ​in the law of defamation
would certainly be justified. I believe there would, however, [be] good reasons why this
class of persons should be liable
without fault by way of an exception. The exception could be substantially founded on
the protection of the ordinary citizen against a class of persons involved in a medium,
which is of such a nature that in case of defamation committed in the medium, it is
difficult to establish intent in respect of a particular person. That in Roman law and our
own law strict liability in certain cases of delictual damage is recognized, appears inter
alia from the ​actio effusis vel deiectis ​allocated to a passer-by who was injured by

things thrown or dumped from a building. ... ​That a defenceless citizen may be placed

in a difficult position with respect to the particular case

​ of the press and radio, which are
powerful media, is not in doubt, and the acceptance of strict liability of the press in our
law would in my opinion be acceptable. In any case the subject was not argued before
us and it is unnecessary to decide it for the purposes of this case.

Thus Rumpff CJ draws heavily on English law, but has to square this with the prevailing view in our law
derived from the civilian tradition. He does so by drawing a distinction between media defendants and
private defendants, applying strict liability only to the former. He justifies this by saying essentially that,
because of the power of the media and the fact that it is hard to establish intention in respect of a
particular media defendant, strict liability for media defendants is in fact desirable.

But clearly this statement was ​obiter:​ see the last sentence of the above quotation. But this position was
confirmed as ​ratio (​ by Rumpff CJ himself) in ​Pakendorf and another v De Flamingh 1 ​ 982 (3) SA 146
(A)​. A judge had criticised an advocate who had appeared before him and bullied the opposing party
during proceedings. But when the press reported the criticisms it got the advocate’s name wrong, saying
incorrectly that it was De Flamingh who had been criticised. Could the defendant be excused, given that
there was no wrongful intention? Rumpff CJ’s answer was clearly ‘No’. The hard analytical work had
been done in ​O’Malley​, and Rumpff CJ basically confirmed what he had said there.

But note that Rumpff CJ left intact the separate regime for vendors and distributors, who could escape
liability by showing that they reasonably failed to realise that there were defamatory statements in the
texts they were selling or distributing: see ​Trimble v Central News Agency L​ td 1934 AD 43​.

The result of all of this was that there was a very important distinction between media defendants and
private defendants. The former were held strictly liable—in other words, ​animus iniuriandi ​was not a
requirement at all—as established in ​Pakendorf.​ But for the latter ​animus iniuriandi w
​ as a requirement,
and it included knowledge of wrongfulness: see ​Maisel v Van Naeran.​

Although ​Maisel v Van Naeran t​ hus established that absence of knowledge of wrongfulness was a
defence (for private defendants), it was not at issue on those facts whether this would be so even where
​ ​Bear this
that absence of knowledge was negligent. This question was expressly left open in ​Pakendorf​.11
in mind during the next section.

​ ecision on
The impact of the ​Bogoshi d
animus

11 ​
Pakendorf ​obviously only dealt with media defendants. But nevertheless Rumpff CJ raised and then left open the question of
whether ​any ​defendant could raise the defence of absence of knowledge of wrongfulness where the absence of knowledge was
negligent.
We have already discussed ​Bogoshi ​in a fair amount of detail when we considered the defence
excluding unlawfulness that it had created. Now we discuss the case again to see what it said about
animus iniuriandi.​ Hefer JA considered—and ultimately altered significantly—all the law that we have
discussed above, especially ​Pakendorf.​

One might wonder why he was so concerned about issues relating to ​animus ​and fault, given that (as we
said above) the defence he introduces excludes unlawfulness. The answer is essentially that ​Pakendorf
stood in the way of his new lawfulness defence. It would be bizarre to say, on the one hand, that the
defendant is excused if his publication was reasonable (which is what Hefer JA’s new defence excluding
unlawfulness implies) and, on the other, to say that liability is strict and thus that the defendant is at fault
even if his publication was reasonable (which is what ​Pakendorf ​implies). Thus ​Pakendorf ​said fault
​ ave to be proved to hold the press liable—but the reasonable publication defence says, in effect,
didn’t h
that fault (in the form of negligence) ​does h​ ave to be proved to hold the press liable.​12 ​Thus Hefer JA did
not feel he could advance the ​Bogoshi d ​ efence without actually showing that ​Pakendorf w ​ as wrong.
Scott says that Hefer JA was probably correct to deal expressly with ​Pakendorf.​ But the fact that he did
consider ​Pakendorf— ​ which of course relates to fault—seems to have led many people to think wrongly
that the ​Bogoshi ​defence excludes ​animus.​ Furthermore, Hefer JA ultimately reintroduces a fault enquiry
into a defence excluding unlawfulness, which seems to elide the distinction between the fault and
wrongfulness elements—and, again, seems to have confused many people.

So what does Hefer JA actually say about ​Pakendorf?​ At one point in his judgment he made the
following disapproving remarks about the importation of strict liability from England:

​ akendorf ​the Court recognized [strict] liability in the law of defamation regardless of
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its fate in the country of its birth, and of the criticism which it had already attracted. ...
[T]he British Parliament had intervened to eliminate some of *strict liability’s+
unacceptable consequences. Yet [the P ​ akendorf ​Court] decided to adopt strict liability
in the form in which it existed in England thirty years earlier, and to leave it to the South
African legislature to decide whether or not it would follow its British counterpart. The
result is that we have been left with a legal principle which had been tried in England,
and was found wanting.

But his most important and lengthy argument was that, although ​Pakendorf w ​ as based on a policy
motivation (viz. to protect the public from the powerful media), when one interrogates the issue properly
one realises that policy considerations point decisively in the other direction. He gives numerous
powerful dicta from local and foreign courts extolling the virtues of a free press, and says:

It is trite that the law of defamation requires a balance to be struck between the right to
reputation, on the one hand, and the freedom of expression on the other. But there is
no indication in the ​[Pakendorf] ​judgment of a weighing of interests, and in particular,

​ we recognise, as we must,
that the freedom of expression received any attention. ... If

the democratic imperative that the common good is best served

​ by the free flow of
information and the task of the media in the process, it must be clear that strict liability
cannot be defended and should have been rejected in ​Pakendorf​. Much has been
written about the 'chilling' effect of defamation actions but nothing can be

12 ​
Or, more accurately, the defendant must prove that he was ​non-​ negligent if he is ​not ​to be held

liable.
more chilling than the prospect of being mulcted in damages for even the slightest
error.... In my judgment the decision in ​Pakendorf ​must be overruled. I am, with
respect, convinced that it was clearly wrong.
So then ​Bogoshi ​clearly rejects ​Pakendorf.​ The result is that press defendants are not held strictly liable.
But the vexed question, then, is what exactly must strict liability be replaced with?

Hefer JA considers the options. First, he rejects the view of Burchell and others, who favoured using
negligence as a fault standard (with the onus on the defendant to rebut it) as a middle path between
strict liability and intention-only liability. The reason for Hefer JA’s rejection is, basically, that the courts
had already rejected it and that he was accordingly bound to do the same.

Then Hefer JA considers whether an absence of knowledge of wrongfulness could be relied on by a

press defendant to escape liability even if the absence of knowledge was negligent. Unsurprisingly, the
answer is ‘No’—that would defeat the purpose of requiring ​non​-negligence in the ​Bogoshi ​defence:

If media defendants were to be permitted to [rely on absence of knowledge of

wrongfulness as a defence to a ​ nimus iniuriandi​, where the lack of knowledge was due
to the negligence of the defendant], it would obviously make nonsense of the approach
which I have indicated to the lawfulness of the publication of defamatory untruths....
The indicated approach is intended to cater for ignorance and mistake at the level of
lawfulness; and in a given case negligence on the defendant's part may well be
determinative of the legality of the publication. In such a case a defence of absence of
animus injuriandi ​can plainly not be available to the defendant.

In other words, if negligent mistakes can rebut ​animus​, defendants would be allowed to escape liability
for intentionally defaming a person even where the publication was negligent. And this would undo all
Hefer JA’s hard work in trying to strike the right balance between freedom of expression and reputation in
his new defence excluding unlawfulness—a defence which can succeed only where there was ​not
negligence.

Hefer JA then points out that the higher standard imposed on media defendants (in that they cannot rely
on absence of knowledge of wrongfulness if this absence of knowledge was negligent) is justified on
policy grounds, because statements made in the media have the potential to reach a much wider
audience—and thus to be much more harmful to their subject—than statements made by private
persons. But then he says that the positions may actually not be that different:

The resultant position of media defendants may not in this respect be so different from
that of other defendants because Pakendorf left open the question whether any
defendant can rely on a defence of absence of knowledge of unlawfulness due to
negligence. However, we have not been called upon to decide the question in relation
to other members of the public.
Thus, Hefer JA suggests that it is still open to a court to decide that a private defendant may ​not ​rely on a
defence of absence of knowledge of unlawfulness where the absence of knowledge was due to
negligence. The result would then be that media and private defendants would be in a very similar
position.

Interpretations of the ​Bogoshi d ​ ecision

We have still not said in simple terms what impact ​Bogoshi ​had on ​animus iniuriandi.​ There are two very
different interpretations of ​Bogoshi,​ both of which find favour amongst academics and the courts:

1. Negligence is now the new fault standard for defamation, at least insofar as the press is
concerned.

On this interpretation, press liability is no longer strict and negligence is the new fault standard.
Negligence is presumed when the plaintiff establishes the publication of a defamatory statement, but it
can be rebutted by the defendant.

This view is supported by Burchell, Neethling and Potgieter. It has also received judicial support from
Lewis JA in ​Mthembi-Mahanyele v Mail and Guardian Ltd 2 ​ 004 (6) SA 329 (SCA) ​at para 45-46:

[I]n a series of cases in this Court (culminating in ​Pakendorf en Andere v De Flamingh​)

it was held that strict liability (liability without fault) should be imposed on the press.
Bogoshi ​held those cases to have been incorrectly decided and introduced a
requirement, insofar as the press is concerned, of reasonable publication. The focus in
Bogoshi ​was thus the question of fault (negligence as opposed to strict liability). But the
Court dealt also with the policy considerations that generally have an impact on the
lawfulness of conduct. In introducing a defence of reasonable publication in the law of
defamation, the Court in ​Bogoshi ​considered that the development was in accordance
with the common law; and that the common law in this regard was compatible with the
interim Constitution then in force....

The press will thus not be held liable for the publication of defamatory material where it
can show that it has been reasonable in publishing the material. Accordingly, the form
of fault in defamation actions against the press is negligence rather than intention to
harm.

The problem with this view is that it is total bullshit. Hefer JA clearly says on more than one occasion in
the ​Bogoshi ​judgment that the defence goes to lawfulness. Somehow this has been overlooked, and the
interpretation above has received a lot of support. It is particularly unfortunate that it has now received
approval from a judge.
The better view is:

2. ​Animus iniuriandi,​ including knowledge of wrongfulness, has been re-established as the fault
standard for press defendants. However, there is a limitation on the way in which absence of ​animus
iniuriandi ​can be pleaded in cases involving the press, i.e. the mistake excluding knowledge of
wrongfulness must be reasonable.

On this interpretation, press liability is no longer strict but ​animus iniuriandi ​has been reinstated
(negligence is ​not t​ he fault standard!). The limitation comes about because if this limitation did not exist
the whole point of the reasonable publication defence would be undermined. Whether the limitation
applies also to private defendants was left open (like in ​Pakendorf)​ .

This view is favoured by Midgley and Van der Walt, and obviously also Scott and Fagan. This is also the
view adopted by O’Regan J in ​Khumalo and Others v Holomisa [​ 2002] ZACC 12​:

​ ogoshi​, too, the question of the rebuttal of intention was considered. One of the
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aspects of a​ nimus injuriandi ​(the intention to cause injury) is subjective intent which,
amongst other