Delictual Matters


Halstead-Cleak v Eskom Holdings Ltd

  • In this case, the plaintiff had instituted a claim against the defendant for damages arising from an electrocution by a low-hanging power line owned by the defendant. The plaintiff argued that the defendant was liable in terms of the Consumer Protection Act and thus the court was required to determine whether the defendant was strictly liable in accordance with section 61 of the Consumer Protection Act.
  • The court held that the defendant contention that the plaintiff was not a consumer in the strict sense but merely a third party and thus could not claim would not uphold the purpose of the Act, as many provisions of the Consumer Protection Act apply to ‘any person’ and thus liability arises not merely from consumers in the strict sense but to any person.
  • The defendant was thus held to be strictly liable for the delict which had occurred to the plaintiff.

Deacon v Planet Fitness Holdings (Pty) Ltd

  • This case dealt with an injury having occurred at a gym, as a woman had attempted to exit the turnstile with her child at the same time and fell in the process. The defendant now claims damages from the defendant on the basis of delict.
  • The parties had entered into a membership agreement however at the back of the agreement there was a limitation of liability clause. The court held that in order for a delict to be proven one first needs to prove wrongfulness.
  • In this case, the consideration of wrongfulness then becomes whether the convictions of society would require the defendant to have taken steps to prevent the harm from occurring i.e having informed members at the gym that only one person could exit the turnstile at a time.
  • The court noted that such a turnstile is commonly found in public areas and there was therefore no need to take any steps to inform the members of how to utilise such and thus the claim was dismissed.

Mashongwa v Passenger Rail Agency of South Africa

  • The plaintiff was assaulted, robbed and thrown off a moving train, whose doors remained open and seeks compensation from the defendant.
  • The Constitutional Court held that the defendant’s core duty is the safeguarding of its passengers and that any negligent breach of this duty would attract liability of compensation in the private realm of delict. The enquiry therefore became whether any steps could have been taken to prevent the damage from occurring and that when dealing with organs of state, such as the defendant, the availability of resources is an integral factor.
  • The court went onto hold that even though negligence was not established in relation to preventing the assailants from boarding the train, the court held that the failure to close the doors of the moving train was negligent as any reasonable organ of state could foresee harm resulting from such and that therefore the duty in question arises from the duty to prevent commuters from falling out of trains.
  • The court held further that the closing of the doors does not require additional resources and would have probably prevented the damage from occurring and was thus closely connected to the harm suffered and therefore the defendant was held to be liable.

Engela v Road Accident Fund

  • The case at hand dealt with a claim against the defendant for loss of support of two children of the deceased, one of whom was an illegitimate child of the plaintiff with another man. The issue therefore before the court was whether the deceased owed a duty of support to an illegitimate child.
  • The Court confirmed the principle of Paixão,  namely the extension of dependant’s actions to permanent heterosexual relationships. The court went onto hold that the duty of support would not only arise in instances where the deceased had during his lifetime undertaken to support such an illegitimate child beyond the dissolution of the marriage.
  • In this instance when the deceased had accepted to live together as a family, there therefore existed a tacit agreement that the deceased would support the child as his own. Therefore the defendant was ordered to compensate the dependant’s of the deceased.

Disclaimer: All information contained herein does not constitute legal advice in any form or manner nor is it intended. All legal advice must be obtained or gained from a consultation with a qualified lawyer. The views and opinions expressed are those of the cited authors and not those of the publishers of iGazette. iGazette accepts no liability for any information which may be incorrect.

© Rui Lopes. All Rights Reserved.

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