Chapter 11: Aquilian Conduct

Conduct can take on one of two forms.

Positive conduct is sometimes called “commissions” or “acts” and involves actively doing
something. For example, you throw a cricket ball through a window; you drive your car into a
neighbour’s car; a demolitions expert places explosives in the wrong building and then
detonates it; a security guard opens the gates to a protected premises to allow robbers in; and
so forth.

Negative conduct is called “omissions” or a “failure to act”. For example, a woman

approaches the police to report that a dangerous criminal is roaming in the streets and the
police do nothing to apprehend the criminal resulting in the criminal assaulting the woman; the
provincial authority fails to maintain a road which causes potholes to form with the result that
a car’s tyre bursts on that road; a doctor avoids or side-steps providing post-operative care to
a patient; and so forth.

This distinction between positive conduct and omissions is not a purely conceptual or
academic exercise. When we address the element of wrongfulness later in this book, you will
discover that the labelling of a specific deed as a positive act or an omission is of utmost legal
importance.

Useful tip

In Chapter 10 we alluded to the fact that how we categorise the patrimonial

harm suffered by the victim is important for purposes of the wrongfulness
enquiry (whether the harm is “physical harm to the victim’s person or property”
versus “pure economic loss”). Now we have told you that the categorisation of
conduct also matters for purposes of wrongfulness (whether the conduct is an
act or an omission). You will discover in Chapter 13 that the combination of the
“category of harm” with the “category of conduct” ultimately determines which
rules we will use to determine wrongfulness. It is thus important for you to take
note of these categories from the start.

Even though we might describe conduct as being an act or an omission, the behaviour in
question must comply with certain requirements in order for the delictual element of conduct
to be met.

- 120 -
11.1 REQUIREMENTS FOR THE ELEMENT OF CONDUCT
Regardless of whether the wrongdoer acted positively or failed to act, it is said that there are
two requirements for conduct to be regarded as legally relevant for purposes of the law of
delict.

Firstly, the conduct must be executed by a human being. For the most part, the harms that
we will be concerned with are those inflicted by human beings. If an act of nature is the cause
of the harm, no one can be sued. Thus, if a volcano erupts and destroys your house, you will
generally not be able to sue anyone for that misfortune (unless of course if someone else was
hypothetically charged with the legal duty to protect you from volcanic eruptions).

An interesting point to ponder arises in the context of harm caused by animals. On the one
hand, a wrongdoer could pick up a chicken and throw it through a victim’s lounge window,
shattering the window into many small pieces. The world is a weird and crazy place so, even
though this is unlikely, it is surely possible. Similarly, the wrongdoer could instruct a dog to bite
the victim. In those cases, the wrongdoer has acted and simply used the animal as an
instrument to cause harm in the same way that one would use a gun to shoot through the
window or to attack a person.

On the other hand, South African law provides that an animal owner will be held strictly
liable for the harms caused by their animals. (We will return to this topic of harm caused by
animals later in the book when we talk about delict plaintiffs and defendants.) If we envisage
that this type of liability is delictual in nature, then this first requirement of conduct might not
be as logical or immutable as delict scholars have thought for many years. This requirement is
generally not contentious in litigation and so we do not have reported case law in support of
this requirement.

Secondly, the conduct must be voluntary. Voluntariness in this context refers to a person’s
physical ability to control bodily movements. Voluntariness neither refers to a person’s mental
health nor their ability to distinguish between what is right and wrong — the state of mind of
the wrongdoer is a question that is addressed under the element of fault.

Practically then, what does voluntariness involve? Typical examples that we find in both
delict and criminal law include sleepwalkers who cause harm, people who experience heart
attacks or strokes and then cause traffic accidents, someone who has an allergic reaction and
then passes out while they are busy doing some dangerous activity that causes harm, and so
forth. We cannot emphasise this enough: In all these cases, we are not concerned with the
person’s mental-health condition. We are simply asking whether the alleged wrongdoer had
the physical ability to control their bodily movements.

If a victim alleges that the wrongdoer has acted voluntarily, that wrongdoer could raise the
defence of automatism to demonstrate that voluntariness was in fact lacking. The following
case demonstrates how voluntariness (or the lack thereof) is proven. Overall, perusing the law

- 121 -
reports, the defence of automatism seems to be a much bigger hype in criminal law than in the
law of delict.

Find and read

Molefe v Mahaeng 1999 (1) SA 562 (SCA). This case tells the story about Freddy
Mahaeng who went to the Minimarket in Welkom where he tripped on a banana
peel and hit his head on the floor. His head wasn’t sore, but he felt pain in his
leg. He felt okay and started driving home. He suddenly felt hot, nauseous, and
then experienced a sudden, unforeseen, and uncontrollable blackout. He
swerved his car into the opposite lane and collided with Mr Molefe. The
following page extract contain the most useful bits of law:

• 565A-567F (regarding what type of evidence you would have to collect

to assist a client in succeeding with a defence of automatism.)

• 567G-569 (regarding the onus of proof related to conduct and the

defence of automatism.)

Useful tip

Most “modern” cases have paragraph numbers. As such, whether you find the
case on Saflii, Juta Online on LexisNexis doesn’t matter all that much. However,
when it comes to older cases that don’t have paragraph numbers, then the page
references matter. The page references that you see above for Molefe’s case are
specific to Juta’s “The South African Law Reports” (abbreviated as “SA” in the
citation “1999 (1) SA 562 (SCA)”). As such, if you find this case on Saflii or
LexisNexis, you won’t find these page references. Make sure that you use the
Juta Online platform to find this case.

In Molefe’s case, the alleged wrongdoer had no good reason to suspect that he would have a
blackout on the road. However, there are other cases in which an alleged wrongdoer should be
able to predict that a state of automatism might be near. In such a case, we might argue that
the wrongdoer probably should have taken steps to prevent the state of automatism from
happening, so that harm would be prevented. Here we would say that the wrongdoer could
still be held liable because of the rule related to antecedent liability (“antecedent” is the fancy
word for “preceding”; the wrongdoer is held liable for their careless conduct preceding the
damage-causing event). The victim can raise antecedent liability in replication to the
wrongdoer’s defence of automatism. The following case demonstrates how our law responds
to that situation.

- 122 -
 Find and read

Wessels v Hall & Pickles 1985 (4) SA 153 (C). This case tells the story about an
insulin-dependent diabetic who knew that he was prone to having
hypoglycaemic attacks that could be prevented by eating regularly, but
nevertheless failed to eat regularly while driving a car. The judgment is only 5
pages long, so you can surely manage to read all of it. Your aim is to understand
how the replication of “antecedent liability” can be used by the victim to defeat
the wrongdoer’s defence of “automatism”.

Useful tip

Another defence from criminal law that excludes voluntariness is “absolute

force” (vis absoluta). This is where, for example, you have a knife in your hand
and someone else comes, grabs your hand, and directs your hand and the knife
in it with great force towards someone else’s heart. Technically you could not
control your bodily movements there too. However, there are no reported delict
cases from the superior courts related to absolute force. This is all hypothetically
very interesting, but it does not seem to happen all that often in the context of
delict.

11.2 CONCLUSION
The element of conduct is not particularly conceptually difficult. It seems to cause much less
stress for delict lawyers than criminal lawyers. The take-home message from this chapter is that
we can describe conduct as either an act or an omission. The conduct should be perpetrated
voluntarily. If wrongdoers believes that they did not act voluntarily their defence is one of
automatism. If the victim believes that the wrongdoer should have anticipated the involuntary
behaviour, the victim’s replication is antecedent liability. It can be represented schematically,
as shown on the next page. The practical implications of the element of conduct is illustrated
in the exercise that follows thereafter.

- 123 -
 Exercise 11A
Helena Gregorio suffered a dilapidating heart attack about three years ago. She
arrived at hospital quickly enough for the cardiologist, a certain Dr Magathi, to
implant a stent into her clogged blood vessels. Since then, she has been on a
long list of prescribed, chronic medication that she takes every morning and
every night. At a follow-up consultation later that year, Dr Magathi concluded
that Helena suffers from ventricular fibrillation and only has an “ejection
fraction” of 25% (medical jargon for saying her heart is only pumping at 25% of
its capacity). As such, she has been and is at serious risk of sudden cardiac arrest.

The doctor then recommended that she have an implanted cardioverter

defibrillator (ICD) implanted. In layman’s terms, the device consists of a small
box containing a battery and electronic components as well a wire connected to
it. The box is implanted below the collar bone under the skin but above the
muscle, while the wire is inserted into a blood vessel that runs to the heart. The
ICD can pick up when the heart is about to stop beating, and then administers a
shock – similar to the shock that you might see being administered in an
emergency room at a hospital. This gives Helena a better chance at survival if
her heart were to stop beating.

- 124 -
Consequently, Helena agreed to the implantation of the ICD and had the
operation done a few months after the heart attack. She was given a brochure
by her doctor. The salient information contained in the brochure follows directly
below:

INDICATIONS
Implantable cardioverter defibrillators (ICDs) are indicated to provide ventricular antitachycardia
pacing and ventricular defibrillation for automated treatment of life-threatening ventricular
arrhythmias. Some ICDs are also indicated for use in patients with atrial tachyarrhythmias, or those
patients who are at significant risk for developing atrial tachyarrhythmias.

Additional notes for DR ICDs: The use of the device has not been demonstrated to decrease the
morbidity related to atrial tachyarrhythmias. The effectiveness of high-frequency burst pacing (atrial
50 Hz Burst therapy) in terminating device classified atrial tachycardia (AT) was found to be 17%, and
in terminating device classified atrial fibrillation (AF) was found to be 16.8%, in the VT/AT patient
population studied. The effectiveness of high-frequency burst pacing (atrial 50 Hz Burst therapy) in
terminating device classified atrial tachycardia (AT) was found to be 11.7%, and in terminating device
classified atrial fibrillation (AF) was found to be 18.2% in the AF-only patient population studied.

WARNINGS AND PRECAUTIONS

Changes in a patient’s disease and/or medications may alter the efficacy of the device’s programmed
parameters. Patients should avoid sources of magnetic and electromagnetic radiation to avoid possible
under-detection, inappropriate sensing and/or therapy delivery, tissue damage, induction of an
arrhythmia, device electrical reset, or device damage. Do not place transthoracic defibrillation paddles
directly over the device.

POTENTIAL COMPLICATIONS
Potential complications include, but are not limited to, rejection phenomena, erosion through the skin,
muscle or nerve stimulation, oversensing, failure to detect and/or terminate arrhythmia episodes, and
surgical complications such as hematoma, infection, inflammation, and thrombosis. An additional
complication for ICDs is the acceleration of ventricular tachycardia.

Derived from: medtronic.com.

Her doctor did not give her any special instructions, except explaining to her that
if sudden cardiac arrest occurs, she will hear an alarm go off in the device and
she should immediately sit down if she is standing, because she is about to be
defibrillated. She went home and recovered well after the operation. All her
follow-up consultations with Dr Magathi showed positive results and she
continued taking her medication.

However, on 25 February this year at 10:00 am, she was driving down a quiet
road to Checkers when she suddenly heard the alarm but, before she could
react, she was defibrillated. She lost control of the car, her foot pressed on the
acceleration pedal uncontrollably, and she crashed into a small business
premises (a small steel hut) operated by Patricia Whaai.

The hut was completely obliterated by the accident, but luckily Patricia was not
hurt by the accident because she was standing on the sidewalk at the time.
Patricia sold small non-consumables but, in the main, she was selling cocaine.

- 125 -
Due to the fact that Patricia’s business premises is destroyed, she can no longer
trade her secret goods and so she suffers a loss of income.

Answer the following questions:

1. Has Patricia suffered patrimonial harm for purposes of Aquilian liability?

2. Has Helena acted for purposes of Aquilian liability?

Useful tip

At this point you should see that there can be multiple layers to problem solving
in a delictual dispute. You should notice that for you to navigate your way
through this problem, you need the knowledge gained Chapter 10 (on
patrimonial harm) and Chapter 11 (on conduct). You cannot study each chapter
in this book in perfect isolation. They all speak to one another in some way. In
this exercise we have drawn your attention to two questions to answer. Our
hope is that by the time you finish this course and need to enter the wild and
wonderful world of legal practice, your thoughts will be geared towards
identifying issues, asking questions that matter, and solving problems by
yourself, without being prompted to do so.

- 126 -