THE LAW OF DELICT NOTES

Special forms of liability involving patrimonial harm, and pain & suffering
Main focus
▪ Omissions
▪ Negligent misstatements
▪ Pure economic loss
▪ Interference with contractual obligations
Others

Omission
Liability for omission is determined by whether a legal duty to prevent harm exists.
The law is hesitant to find a duty to act positively to prevent harm, as there is no
general right to be protected from harm. Courts recognize a duty to act positively for
delictual liability only when it was unreasonable according to boni mores or
community legal convictions.

Liability to prevent harm is determined based on reasonableness and public policy.

Before the 1975 Ewels case, courts imposed liability for omission based on prior
conduct created. In Minister van Polisie v Ewels, liability was imposed when an off-
duty policeman in a police station assaulted the plaintiff in the presence of senior
policemen, who failed to prevent the assault.

In Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA), whereby B an

elderly woman stumbled on a pothole in a busy sea point pavement where the
municipality had no taken prior conduct and this resulted in the potholes and then
had not put warning signs of the potholes the court held that the prior conduct
requirement for determining wrongfulness in cases of local authorities' omissions to
maintain and repair roads and pavements was replaced by the policy-based
standard of boni mores or the legal convictions of the community, considering factors
like the extent of the danger.

Mostert v Cape Town City Council 2001 (1) SA 105 (SCA) – the case involved a
damaging leak from a burst water pipe. Question was whether the City Council was
negligent in not preventing the pipe from bursting. In dealing with this issue the court
weighed the technical evidence of the risk of the pipeline collapsing against the high
cost of replacing it, and judged that the council could not have been expected to
replace the pipe and therefore found that the council was not negligent.

Factors considered by the courts to establish the existence of a legal duty

Prior conduct:
Prior conduct indicates whether a duty exists to act positively to prevent harm from
occurring. A person acts prima facie wrongfully when he creates a new source of danger
by means of positive conduct (commission) and subsequently fails to eliminate that
danger (omission), with the result that harm is caused to another person.

Control:
A legal duty exists where the defendant had control over a dangerous or potentially
dangerous situation or object. In this case, an assessment will be made of the degree
and scope of control that is required based on all the factors of a particular case.

State departments, public bodies and officials that exercise functions in the public
interest:
Boni mores demand that hospitals and health care practitioners provide proficient
health care services to members of the public and be held liable for failure to provide
prompt and appropriate medical service.

Obligations to act positively in terms of common law and statute:

The focus of the enquiry is on whether the defendant had a legal duty in common law
or from statute to act positively( prevent harm/protect others from harm).

Special relationship:
In some cases, the existence of a special relationship between the parties may be an
indication that the one party had a legal duty towards the other to prevent harm,

eg. Contractual relationship, a long-standing business relationship, policeman, and members

of the public, employer-employee relationship and the doctor-patient relationship.

Creating an expectation:
A defendant has a legal duty to protect the plaintiff's interests.

Knowledge:
A defendant has a legal duty if they knew the omission would cause harm.

Practical measures to prevent harm:

Courts consider potential preventative measures used/taken by both parties to
prevent harm/avert the loss.

Enquiry/test
The test looks at practical measures that could have been taken by both the plaintiff
and the defendant to avert the loss. In Idac Electronics (Pty) Ltd v Volkskas Bank Ltd
1992 (1) SA 783 (A) where the liability of a collecting bank towards the true owner of
a cheque was an issue. The court considered the ability of the bank to protect itself
against liability by taking an insurance cover.

Professional duty:
Did the failure to prevent harm occur while rendering professional service,
eg. Medical doctor, lawyer, or engineer?
Public office:
The court looks at whether a person holding a public office failed to prevent harm or
not.
eg. Notary, sworn appraiser, an auditor.

Social and economic implications:

Courts take into consideration the social, legal and economic implications of
imposing liability for the infringement, such as whether imposing liability would lead
to a floodgate of claims against the defendant.

NEGLIGENT MISSTATEMENTS

Liability for misstatements arises when a plaintiff acts upon incorrect information
provided by the defendant, for liability to arise the plaintiff must have the right to be
given the correct information and the defendant must have a duty to provide correct
information. for liability to arise it requires both parties to have a contractual duty to
provide accurate information/ a contractual relationship.

however, If no contract/contractual relationship exists, the Enquiry will focus on

whether the factual situation gives rise to policy considerations indicating that a legal
duty to provide correct information exists. If the misstatement by the defendant
constitutes a breach of such a duty and causes harm to the plaintiff, the requirement
of wrongfulness is met. note that the Liability for negligent misstatement is an
important category of liability for pure economic loss.
The Administrateur Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) case -
established that aquilian liability can arise from negligent misstatements causing
financial loss. trust bank had represented or acted on behalf of a person who
claimed compensation from the provincial authorities for the expropriation of
property. the provincial authority paid said person and later discovered that the
claimant was not the property owner, and the provincial authorities claimed damages
for the misrepresentation from the bank. they failed, the court held the bank had no
legal duty to verify facts and that the provincial authority's own mistake caused the
loss.

Factors considered by the courts in regards to Negligent Misstatements

Public office: The enquiry turns on whether the economic loss was caused by person
holding a public office.
E.g. notary public, auditor etc.
The rationale is that members of the public are entitled to have confidence and trust in
the acts of such persons.

Professional knowledge and competence:

The enquiry investigates whether the economic loss was caused while providing
professional services and whether there was a failure of professional competence or
skill. Where a person provides services and professes to possess special skills and
professional competence, courts will readily accept that it is unreasonable to cause
economic loss to a person who depends on that information that is given in a
professional capacity.

Negligent Misstatement cases

EG Electric Co (Pty) Ltd v Franklin 1979 (2) SA 702 (E) – a registered electrician, on
instructions of the seller of a house, had supplied a certificate that the electrical
wiring of the house complied with municipal regulations. Held, that a registered
electrician owed a legal duty to provide a certificate with correct information to the
purchaser of the house, who had relied on the correctness of the certificate and later
had to incur costs to correct the defective wiring on the house.
Mukheiber v Raath 1999 (3) SA 1065 (SCA) – the respondents, husband and wife,
relying on an alleged misrepresentation by the appellant, a gynaecologist, that he
had sterilised the wife, had desisted from contraception, as a result of which a fourth
child was conceived and born. The respondents claimed compensation from the
appellant under two heads of pure economic loss, for the costs of confinement of the
wife and for the maintenance of the child until it became self-supporting. The
Provincial Division found on the facts that the respondent had failed to prove that the
appellant had made the alleged misrepresentation.
The SCA held that the doctor had a legal duty to stop making representations until
he had taken reasonable steps to ensure the accuracy of his representation. And
that the parent’s reasons for wanting sterilization were socio-economic and family
reasons, and that the reasons were not contra bonos mores. Therefore recognizing
this duty would not be a heavy burden on the doctor. Though a misstatement, the
doctor had wrongfully caused financial loss to the parents.
Factors considered on the mukheiber v Raath case
Doctor-Parent Relationship and Risk
• Doctor-parent relationship is crucial.
• Risk of conception and unwanted childbirth should have been obvious to the
doctor.
• Parents' reliance on doctor's information is crucial.
• Misrepresentation related to technical surgical procedure in which the Doctor's
knowledge is more important than the parents' understanding.

NEGLIGENT MISSTATEMENT cases conti

Axiam Holdings Limited v Deloitte and Touche 2006 (1) SA 237 (SCA) – Axiam sued
for misstatement of an audited company’s financial position, which caused the them
loss after they had purchased shares in the company. Deloitte excepted on the
grounds that, (1) that they did not owe Axiam a legal duty in law, and (2) that their
failure to warn Axiam did not constitute a representation in terms of the relevant
statute [Public Accountants’ and Auditors’ Act 80 of 1991]. The court declined to
decide at an exception stage that it is inconceivable that the auditors who knew that
purchasers of shares in a company would rely on their statements would not have a
duty to speak. The court found that actionable misrepresentation by silence or
inaction is possible where a duty to speak exists.
Cape Empowerment Trust Limited v Fisher Hoffman Sithole 2013 (5) SA 183 (SCA)
– a purchaser of a business relied on a certificate issued by the seller’s auditor
confirming that the business made a profit of R10 million. It turned that this was
untrue and that the auditor had been grossly negligent. The purchaser was not a
client of the auditors. The court decided not to impose liability on the auditors for the
grossly negligent misstatements. The court considered the following factors:
▪ Was the representation made in a business context and in response to
a request? (yes)
▪ Was the plaintiff dependent on the defendant to provide the information
or advice? (no)
▪ Was the information available to the plaintiff from another source (yes,
the purchaser could have undertake a comprehensive due diligence
investigation, as provided for in the contract of sale)
▪ Could the plaintiff reasonably have avoided the risk of harm by other
means? (yes)

General factors considered by the courts in regards to NEGLIGENT

MISSTATEMENT
Knowledge:
if the defendant had prior knowledge or foresaw that the misstatement would cause
harm, such knowledge or foresight of the possibility of harm imposes a duty on the
defendant not to cause harm.

The extent of the possible liability and the economic or social consequences of imposing
liability:
where the economic or social consequences of imposing liability would lead to
indeterminate liability or multiplicity of actions, courts will be reluctant to accept that
such a duty rested on the defendant.

Ability to protect oneself from the loss or against liability:

courts can take into account the ability of the person who has suffered the loss to take
protective measures against such a loss.
eg. By verifying the information received.

A special relationship:
a relation of trust or dependence is more likely to be considered by the courts as giving
rise to a legal duty to provide correct information.
eg. Employer-employee and bank and its clients.

Pre-contractual agreements:
a person in a pre-contractual negotiations with another has a legal duty not to make
a misstatement about a material aspect of the contract.
Statutory duty:
courts will also enquire into whether the duty to provide correct information was
provided for by a statutory provision.

PURE ECONOMIC
Pure economic loss, is a loss that is unrelated to physical injury or property damage,
it is a category of loss that courts avoid imposing liability for due to the fear of
imposing floodgates of/excessive liability risks.

There is no set test or standard that courts employ to determine liability for pure
economic loss. Courts apply among others: -
▪ Apply the criterion of general reasonableness used to determine
wrongfulness,
▪ apply the criterion of reasonable foreseeability used to determine
negligence,
▪ Apply the flexible standard for determining legal causation, which
standard involves reasonableness, directness and fairness.
Pure economic harm is not the same as financial harm resulting from physical harm
or injury causing financial harm. In cases of physical harm, the court focuses on
bodily harm which it regards as wrongful and considers the resulting economic harm
as an additional recoverable damage.

It is said that causing pure economic loss is not prima facie wrongful. In Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1)
SA 461 (SCA) – the court held that the conduct is wrongful if public policy
considerations demand that in the circumstances the plaintiff has to be compensated
for the loss caused by the negligent act or omission of the defendant’.

Determining if the defendant had a legal duty in regard to pure economic loss

In pure economic loss cases – it is not enough for the plaintiff to allege that the harm
was negligently and wrongfully caused, the plaintiff must also argue that there was a
legal duty on the part of the defendant. Generally, courts determine wrongfulness by
looking at the infringement of a right or a breach of a duty. Typically, in most of the
pure economic harm cases, often there is no infringement of rights, so courts enquire
into whether the defendant had a duty to prevent economic harm to the plaintiff. The
following factors are considered:
Factors considered by the court if whether the defendant had a legal duty to
prevent economic harm.

Knowledge:
Whether the defendant knew or subjectively foresaw that his or her conduct would
cause damage to the plaintiff is an important and often a decisive factor.

Practical measures to avert the harm:

The court enquires into options and the practical steps that the defendant could have
taken to avert the harm.

Professional knowledge and competence:

Where the defendant provides professional services and professes to possess
specialized skills, knowledge and competence, courts are more likely to say that
he/she had a legal duty not to cause economic loss.

Degree and extent of the risk:

A high degree of risk indicates that the defendant had the duty to take preventative
measures.

Ability to protect oneself against the loss:

Courts will also enquire into the measures that the plaintiff took to guard against their
own loss.

Special relationship:
It is generally accepted that a relationship of trust will give rise to a legal duty to
prevent economic harm

Statutory duty:
Courts will enquire into whether a duty to prevent economic harm was provided for or
implied by a statutory provision.
Eg axiam Holdings Limited v Deloitte and Touche
e.g. Axiam holdings claimed/alleged that under the Public Accountants and editors
act 78 of 1991 they had no statutory duty imposed on them to act.

Fraud or dishonesty:
The presence of fraud or acts of dishonesty will likely make the causing of harm to
be unreasonable. In this regard Minister of Finance v Gore 2007 (1) SA 111 (SCA) –
stated that, ‘We do not say that dishonest conduct will always be wrongful for the
purposes of liability, but it is difficult to think of an example where it will not be so’.
Eg E.G electric co (pty) LTD whereby a registered electrician under the orders of a seller
provided a false certification of the electrical wiring of the house stating it to be in the
best condition to the purchaser of the house

Pure economic loss cases

In Fourways Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150
(SCA)(read whole case to understand) – SA National Roads Agency was authorized
to collect toll fees at two toll plazas. Fourways Haulage was transporting asbestos
and one of their drivers caused an accident, which resulted in in high toxic spillage
on the road. The road was closed and traffic was diverted to non-toll road while the
spillage was cleaned up. The road closure lost money because of this and therefore
sued Fourways Haulage for damages.
On legal causation the court placed emphasis on the reasonable foreseeability
enquiry as a means of determining legal causation. The court cautioned against
deciding questions of legal causation simply on the basis of policy; the enquiry into
legal causation, the court warned, must be grounded in principles such as
reasonable foreseeability, proximity, directness and remoteness of harm.
The court found that the Road Agency’s loss was not too remote, for it was
reasonably foreseeable that an accident that involved a truck carrying hazardous
cargo could lead to a road closure, resulting in loss of revenue.

Shell and BP SA Petroleum Refineries (Pty) Ltd v Osborne Panama 1980 (3) SA 653
(D) – the defendant’s employees caused damage to a mooring buoy in the Harbour,
which in turn caused economic harm to the charter of an oil tanker waiting outside
the harbour, due to the delay in discharging the cargo and additional liability for
charter fees. The court held that the defendant did not owe a legal duty to the plaintiff
to prevent such economic harm, and that the plaintiff had not shown that the
defendant should have foreseen the possibility of such harm to the charter
specifically.

Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015

(1) SA 1 (CC) - the Department of Infrastructure Development in Gauteng, awarded
a joint venture of four contractors a tender to build the Zola Clinic in Soweto. In
March 2008, before the completion of the clinic, three of the contractors withdrew,
leaving iLima Projects (Pty) Ltd the only contractor. The Head of the Department
decided that the construction of the clinic was urgent and therefore awarded the
contract for completing the clinic to iLima without putting the contract out to tender
again.
To begin construction, iLima needed immediate financial assistance and thus sought
a loan for R12 million from the applicant, Country Cloud Trading CC (Country Cloud).
It was agreed that iLima would repay the loan amount plus R8.5 million in profit to
Country Cloud. Country Cloud also obtained an undertaking from Tau Pride (Pty) Ltd
(Tau Pride), the Department’s managing agent for the project, that the loan amount
would be paid directly to Country Cloud when project funds from the Department
were made available. However, the Department cancelled the completion contract in
September 2008 before any payment was made. Thereafter, iLima went into
liquidation, rendering it unable to repay its debt to Country Cloud.

Before the High Court, Country Cloud claimed R20.5 million from the Department in
delictual damages. The Department opposed the claim on the basis that it was not
liable in delict and that the completion contract was awarded contrary to the
prescribed procurement process. The High Court found that the contract was not
properly awarded to iLima and dismissed Country Cloud’s claim. On appeal, the
Supreme Court of Appeal found that the contract was validly awarded. However, it
concluded that the Department’s act of cancellation was not wrongful – an essential
requirement for a delictual claim – and dismissed Country Cloud’s appeal.
The Constitutional Court concluded that the Department’s cancellation of the
completion contract was not wrongful and did not fall into the recognised category of
intentional interference with contractual relations, as Country Cloud argued. The
Department did not act wrongfully or corruptly. Further, that country Cloud could
have attempted to take steps to protect itself against non-payment by claiming
payment from iLima’s Liquidators under the loan agreement, calling for payment
from surety etc.

INTERFERENCE WITH CONTRACTUAL RELATIONS

Interference with contractual relations amounts to causation of pure economic loss

and therefore the plaintiff can sue the wrongdoer.( there is a right and a duty, you can
not hide things in a contractual relationship)
So to be successful the plaintiff must prove all the elements of delictual liability( 5
elements: harm, conduct(commission/omission), wrongfulness,
causation(legal/factual causation), and fault), and it is important that the plaintiff
argues that the loss was caused wrongfully.
Courts have approached interference with contractual relations differently depending
on whether it occurred negligently or intentionally.

Negligent interference with contractual relations

Courts have generally refused to impose delictual liability for the causation of pure
economic loss through negligent interference with another’s contractual rights.
In Union Government v Ocean Accident and Guarantee Corporation Ltd 1956 (1) SA
577 (A) - the courts have as a rule refused to extend Aquilian liability for negligent
interference with a contractual relation.
In Minister of Safety and Security v Scott 2014 (6) SA 1 (SCA) - the SCA indicated
that it would in principle be willing to consider expanding delictual liability to negligent
interference with contractual relationships in future.

Intentional interference with contractual relations

Intentional interference with contractual relations by a third party may give rise to
delictual liability towards the contracting party who has suffered loss.

For instance
In the Country Cloud Trading CC v MEC, Department of Infrastructure Development
2015 (1) SA 1 (CC) – the Constitutional Court pointed out that liability that the
delictual interference with contractual relations may be brought by a party who
asserts that a third party (a stranger to the contract) has intentionally deprived it of
the benefits it would otherwise have gained from the performance of the contract.
Dantex Investment Holdings (Pty) Ltd v Brenner 1989 (1) SA 390 (A) – the plaintiff
instituted a delictual claim against the defendants on the basis that the defendants
had intentionally and wrongfully interfered with the plaintiff’s lease agreement with a
third party. The defendants excepted to the plaintiff’s claim, which exception was
upheld by the court a quo.

On appeal, the AD held that when claiming for patrimonial loss based on the
intentional and wrongful act of another, the plaintiff is required to allege and prove
that the defendant intended to cause the plaintiff’s loss, and in casu it was found that
the plaintiff had failed to do so because it merely alleged that the defendants acted
with knowledge of the plaintiff’s rights and that the plaintiffs had suffered a loss.

Further, the court held that it was accepted that intent encompassed not only the
intention to achieve a particular result, but the consciousness that such a result
would be wrongful. The plaintiff should therefore have alleged consciousness of
wrongfulness on the part of the defendants, but also failed to do so.

Lance Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 (4) SA 378 (D) – the
plaintiff concluded a lease agreement with the owner of a business premises on 14
December 1989 in terms of which occupation was to take place on 01 February
1990. The defendant was the tenant at the same premises at the time, and their
lease was to expire on 31 December 1989. The defendant, who had been aware of
the lease negotiations, did not vacate the premises and as a result the plaintiff was
only able to take occupation on 02 April 1990. The plaintiff sued arguing that the
holding over by the defendant was an intentional and wrongful interference with its
lease agreement and caused it to suffer pure economic loss.

The court found that the defendant had been aware that should he fail to vacate the
premises, the plaintiff would suffer losses. The court therefore held that the
defendant’s failure to vacate the premises had interfered with the plaintiff’s
contractual relationship.

Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd 2017 (1) SA 613 (CC) –
Masstores (Pty) Ltd had concluded an agreement with the owner of the mall, in
terms of which it was agreed that Masstores was not allowed to trade as a general
food supermarket. The mall owner also entered into a separate agreement with Pick
n Pay, in which he undertook not to permit any other supermarket to operate in the
mall.
When Masstores decided to launch its Foodco concept at its store, Pick n Pay
argued that Masstores was operating as a supermarket and therefore launched an
interdict application against Masstores to restrain it from interfering with the lease
agreement between itself [Pick n Pay] and the owner of the mall. The SCA held that
Masstores, in trading in competition with Pick n Pay, contrary to its contractual
restrain, after it was made aware of Pick n Pay’ right to exclusivity, had acted
wrongfully.

On appeal to the Constitutional Court, the court emphasized the need for free
competition as a policy consideration and held that there was no wrongfulness on
the part of Massstores.
SPECIAL FORMS OF LIABILITY: PSYCHOLOGICAL OR EMOTIONAL HARM

Pain and suffering

Traditionally, individuals who suffer bodily injury can recover both patrimonial loss
that results from the injury such as hospital bill, damage of property if in a car
accident and compensation for pain and suffering which is money for
solace/solatium. However, under common law, the action of pain and suffering is not
transmissible( cannot be transferred) or available against the claimant's estate and
the defendant's estate after death unless the action had reached litis contestatio
(formally ready to proceed to trial). Courts award appropriate amounts to provide
solace for physical pain or discomfort experienced in the injury, psychological harm
in the form of shock caused by the injury or distress due to disfigurement, loss of
amenities or a shortened life expectancy, and distress due to injury. it is rather
important to note that harm in the form of pain and suffering does not have economic
value but nevertheless, the court awards an appropriate amount.

Courts distinguish between the law of delict (provides satisfaction and

compensation) and criminal law(punish the wrongdoer and seek justice for the
victim) in terms of pain and suffering. The law aims to punish the wrongdoer, while
compensation for pain and suffering aims to provide solace to the victim. The
Constitutional Court has made it clear in Fosi v Minister of Safety and Security and
Dikoko v Makhotla that the aim of the award for the damages in delict should
vindicate rights and console victims, not punish wrongdoers.

In the Collins v Administrator cape case, the court held that awarding damages for
pain and suffering to an unconscious victim even if it is a nominal award is
inappropriate seeing as they cannot experience consolation, it also would introduce
a punitive element into the modern law of delict.

EMOTIONAL SHOCK

Emotional shock may be described as a sudden and painful emotion or fright

resulting from the awareness or observation of an overwhelming or disturbing event
which causes unpleasant emotions such as fear, anxiety or grief.

Causes of emotional shock

• Caused by fear for one's safety, others' safety, or fear of one’s property.
• by observing an accident, learning of the death of loved ones, or experiencing other
disturbing events.

We must note that initially, the court's position was restrictive to the issue of
emotional shock, requiring that physical injury must have caused psychological harm
and that the person suffering psychological harm must have been in personal danger
of physical injury.

Cases of emotional harm

In Mulder v South British Insurance Co Ltd 1957 (2) SA 444 (W) the court found that
a child had been negligently killed when he was run over by a bus, but went on to
say that there were no damages awarded to the mother who suffered emotional
shock as a result of witnessing the incident.

1973 AD Legal Change on emotional shock: Bester v Commercial Union

Versekeringsmaatskappy van S.A. Bpk
The case involved a negligent collision with a motorcycle insured by the respondent
resulting in a child's death witnessed by his brother. The appellant claimed his son
suffered severe shock and psychological disturbance from the collision and that he
had to undergo intensive psychotherapy for an anxiety neurosis that had developed
due to the traumatic event. The court rejected the claim, stating the child's condition
was purely psychological and unconnected with any physical disability.

On appeal, the AD’s Decision on Personality Change of Appellant's Son

was that damages for change of personality are common law, not an extension of
Aquilian liability. the court also held there was no requirement for damages to be
awarded for the shock and that such shock should be accompanied by purely
physical injury for damages. Liability for psychological harm must be determined
based on reasonable foreseeability.
Now settled law: courts can award damages for nervous or emotional shock causing
recognized psychiatric injury. the Plaintiff must prove shock caused physical
reactions like stroke, miscarriage, high blood pressure, trembling, acute depression,
post-traumatic stress disorder, impaired sleep, emotional trauma, and recognized
psychiatric
injury.

Courts approach claims based on nervous or emotional shock cautiously due to the
inability to measure mental injuries in terms of money. Courts also consider
temporary emotions like grief or fear, which courts have refused to award damages
for. The closer the relationship, the more likely psychological harm will be
foreseeable.

The Road Accident Fund v Sauls 2002 (2) SA 55 (SA) case exemplifies this whereby
the court awarded damages to a fiancée who had a live-in relationship with a person
injured in an accident that she had witnessed.
Emotional Shock in Courts

The "thin skull" or talem qualem rule, where the wrongdoer takes the victim as he
finds them applies, this prevents defendants from escaping liability by proving that
the plaintiff was particularly susceptible to the prejudicial consequences of the shock
and that the consequences were not reasonably foreseeable.

changes have occurred whereby back in the day the court would award damages to
only the individual who suffered physical injury in the incident but now courts also
impose liability in cases of emotional shock resulting from a report of a tragic event
(Bernard v Santam).

since the 1st of august 2008 The Road Accident Fund Act 56 of 1996 excludes
claims for emotional shock sustained by a person who witnessed/observed or was
informed of another person's injury or death due to motor vehicle driving.

the action for pain and suffering is also available where the harm was caused
intentionally. In Boswell v Minister of Police 1978 (3) SA 268 (E) a policeman had
deliberately provided false, distressing information to the plaintiff, by telling her that
her nephew had been shot. The plaintiff collapsed and lost consciousness as a result
of emotional shock. In addition, she also felt weak, had a headache and suffered
from high blood pressure. She felt shaky for a month after the shocking news. The
plaintiff succeeded with a claim for general damages through the action for pain and
suffering on the ground of intentional infliction of emotional shock. [actio inuriarum
could have been appropriate for the Boswell case, but the particulars of claim were
not framed in such a way to include damages intentionally caused].

An alternative remedy for psychological harm caused by intentionally infringing a

personality right is the actio iniuriarum. In Els v Bruce 1922 EDL 295 the court dealt
directly with emotional shock that was intentionally caused and held that actio
inuriarum was the appropriate remedy where the defendant adversely affected the
victim’s health by addressing her in an insulting and threatening manner.

IDENTITY

Identity is the uniqueness that distinguishes an individual from others/ is the

uniqueness that identifies a person as a particular individual and distinguishes them
from others. identity manifests in distinctive personality facets/traits like life history,
character, name, creditworthiness, voice, and handwriting. Infringement occurs when
identity is used in a way that doesn't reflect the person's true personality image.

Infringements of identity

▪ Interference with a person’s identity can take two forms:

▪ Placing a person in a false light, that is, presenting a person in a
manner which creates a false sense of who that person is, and/or
 ▪ Misappropriation of a person’s identity, that is, using a person’s name
and/or likeness without justification, usually for commercial advantage
or gain.
▪ An infringement of identity can simultaneously involve both placing a person
in a false light and misappropriation of the person’s identity. Sometimes an
infringement of a person’s identity can sometimes constitute an insult in the
narrow sense and an infringement of the right to privacy.

Placing a person in a false light

In Kidson v SA Associated Newspapers Ltd 1957 (3) SA 461 (W) –a newspaper

published a false story and photographs under the headline ‘97 Lonely Nurses want
Boyfriends’. The nurses had previously consented to their photographs being taken
for fundraising purposes to build a recreation hall near the nursing training centre.
Some of the nurses were married, and others were engaged. A married nurse sued
for defamation and iniuria.
The court found that the nurse had been insulted and awarded damages for an
infringement of dignity.
Comment: Some scholars view this case as an invasion of privacy while others think
it is an infringement of identity.

Misappropriation/Appropriation

’Keeffe v Argus Printing and Publishing Co Ltd 1954 (3) SA 244 (E) – the plaintiff, a
popular radio presenter at the time, had agreed that a newspaper could publish her
photograph as part of a news article. However, the newspaper used the photograph
in an advertisement for a gun manufacturer.
The photograph was of the plaintiff holding a crossbow at an archery range. The
plaintiff claimed that this violated her personality interests and in particular,
constituted a violation of her dignity.
The court found in her favour, holding that the use of a person’s photograph and
name without his or her consent for advertising purposes may reasonably constitute
offensive conduct on the part of the user.

Arise of liability
for liability to arise they should be:
• a factual violation of a person’s identity
• wrongfulness
• intention
however, Because the right is not necessarily associated with feelings, it follows that
both natural and juristic persons are capable of having an identity that can be
infringed.
Case law
Grütter v Lombard 2007 (4) SA 89 (SCA) Case Summary
Grütter and Lombard were partners in a law firm. after the partnership ended, Grütter
started practicing under another name, 'Grütter and Grobelaar'. Lombard continued
using the old partnership name. The Supreme Court of Appeal had to decide if the
name of the appellant could still be used in the name of a law firm even though the
relationship had ended.
The appellant made the case that it was well known that he had been one of the
persons who the name referred to and that he was no longer part of the firm and did
not want to be associated with it.
The court unanimously ruled in favor of the appellant, ordering the respondents to
stop using his name and rectify the matter within 30 days.

Kumalo v Cycle Lab (Pty) Ltd 2011 JDR 1480 (SGJ) - A picture was taken of a TV
celebrity in a cycling store without her consent. The image was then used in an
advertisement for the store. The court applied the reasoning in the Grütter case and
held that the celebrity’s right to identity had been unlawfully and intentionally
interfered with.
There had been an unlawful misappropriation of identity, as her image had been
used by the store for its own commercial gain without justification. The store must
also have known, or at least reasonably foreseen, that what it was doing was wrong.
It therefore acted with intention.

Cele v Avusa Media Limited [2013] 2 All SA 412 (GSJ) - the plaintiff, Mr Bheki Cele,
sued the defendant Avusa Media Ltd for damages in the amount of R200 000 for
defamation, and in the alternative infringement of his dignity, arising from the
publication of two articles together with a digitally altered photograph of himself
which depicted him as a sheriff in the ‘Wild West’.
A picture of his head had been superimposed on an image of a real person, but it
was clear that the image was not a true depiction of the plaintiff. The plaintiff was
affronted by the image alleging that it constituted an interference with his identity, in
that he had been presented in a false light by mixing images of himself and of
another person. The image had also been used without his consent.
Held, that the fact that the image had been used without his consent did not give rise
to iniuria. Given the fact that the image was of a politician (a public figure) and used
in relation to an important public issue, it could not be said that the use of an altered
image without his consent was wrongful in the circumstances.

Wells v Atoll Media Case Summary

A 12-year-old girl was photographed by a freelance photographer, unaware of her
being photographed. The photograph was published by a surfing magazine and
broadcast on national television. The magazine included the word "filth" and a
description of "all-natural Eastern Cape honey". The girl began receiving lewd text
messages, referring to her as a "slut" and "PE’s own little porn star". The girl's
mother sued for defamation and invasion of privacy. The magazine tried to argue
that the word "filth" had a positive connotation in the surfing community.
The court ruled that the magazine failed to prove that the word had an unusual
meaning contrary to its usual meaning. and held that The girl was defamed by the
photograph. This case involved a wrongful and intentional violation of the right to
identity.
REPUTATION

A person’s reputation refers to the good name the person enjoys in the estimation of
others, that is, what others think of that individual as a person.
The law of defamation aims to protect the right to reputation (fama) or good name of
both natural and juristic persons.
O’Keeffe v Argus Printing and Publishing Co Ltd 1954 (3) SA 244 (E) defined
reputation as: ‘that character for moral or social worth to which he is entitled amongst
his fellow-men’
difference between reputation and identity is what others think of a person
(reputation) and what a person thinks of himself or herself (dignity).
The law of defamation seeks to protect a person’s right to an unimpaired reputation
or a good name against any unjust attack.

Meaning Of Defamation
Defamation is the:
▪ (i) wrongful and
▪ (ii) intentional
▪ (iii) publication
▪ (iv) of defamatory material
▪ (v) that refers to the plaintiff
Essence: the material must reach someone other than the person to whom it refers,
and that the nature of the communication must be defamatory. Meaning, that the
nature of the material must be likely to damage the person’s reputation or lower the
person’s good name or standing in the opinion of others.

For liability to arise, there must be:

▪ (i) a factual violation of the right to reputation
▪ (ii)which is wrongful
▪ (iii) intentional

A person’s reputation is factually disturbed when there:

▪ (i) is defamatory material
▪ (ii) that refers to him or her
▪ (iii) and is published

The plaintiff bears the onus of establishing that factual violation of the right to
reputation has occurred. Once he has done this, two rebuttable presumptions arise:
one of wrongfulness and one of fault, either in the form of intention or negligence
(depending on whether or not the defendant is a media defendant). If the defendant
is unable to rebut either one of these presumptions, he or she will be liable.