LAW OF DELICT

Assignment 2
SELF-ASSESSMENT

DEPARTMENT OF PRIVATE LAW

MODEL ANSWER
ASSIGNMENT 2: WRITTEN

LAW OF DELICT
(PVL3703)

DUE DATE: Saturday, 07 September 2024

N.B.:
• Assignment 2 is a written self-evaluation task.
• It is an example of the kind of question that you may expect in the examination.
• No marks will be allocated for it.
• Submission is not required!

ASSIGNMENT QUESTION

Mr Gummy, a bank manager who has long been treated for alcoholism and has been punished
multiple times in the past for offences committed while drunk, showed up at work intoxicated,
wasted and belligerent. Mr Gummy was holding a leash attached to the neck of his bullmastiff
dog, despite the prohibition policy on bringing pets to the workplace. Upon his arrival, he
summoned a fellow junior employee, Ms Divine to his office. While Ms Divine was standing in
front of his desk, Mr Gummy yelled at her, using swear words and other immoral language.
When Ms Divine swore back at him, Mr Gummy incited his bullmastiff dog to attack her. The
dog jumped at Ms Divine, she subsequently fell to the concrete floor and the dog mauled her.
A huge chunk of her cheek is missing, and she will require reconstructive surgery. She also
suffered a severe concussion, a broken spine, dislodgement of her right shoulder and a
fracture of her right arm. Consequently, she was hospitalised and received extensive medical
treatment. She has not returned to work and has not received her employment benefits and/or
salary from her employer. She is unable to continue to work with Mr Gummy under the
circumstances. It emerged that Mr Gummy’s ego was bruised when Ms Divine rejected his
romantic advances a day before. Ms Divine instituted a delictual action against her employer
Mr John and Mr Gummy. Mr John, the CEO of the bank, raised the defence that Mr Gummy
was intoxicated and therefore did not act when Ms Divine was attacked by his dog. Will the
court uphold the CEO’s defence? Fully discuss the merits of this defence with reference to
authority. [50]

UNISA
© 2024
 MODEL ANSWER
ASSIGNMENT 2
WRITTEN SELF-ASSESSMENT

An act, referred to as "conduct," is a general prerequisite for delictual liability. [1] Conduct is
defined as a voluntary [1] human [1] act or omission. [1]

Thus, only voluntary conduct will give rise to delictual liability. An act is voluntary if it is
susceptible to control of the will [1] or if the person is able to control his muscular movements
by his will. [1] Voluntary does not mean willed; the bodily movements need not be willed to be
voluntary, [1] nor do they need to be rational or explicable. [1] In other words, there must be
no compulsion, and the conduct must not be a reflex action or movement. [1] The person
engaging in the conduct must also be of sound mind or sober senses, [1] not unconscious,
intoxicated, vis absoluta, asleep, in a fainting or epileptic fit, a blackout or under strong
emotional pressure, have a mental disease, hypnosis, or a heart attack. [Award 1 mark each
up to a maximum of 5] He must be accountable for his actions, have the ability to distinguish
between right and wrong, and act accordingly. [1] Unless this standard of accountability is
secured, he will not be accountable for his actions or omissions. [1] Thus, his actions will not
be regarded as conduct for purposes of delictual liability. [1] The above-mentioned conditions
may give rise to a state of automatism [1] ─ the most common defence against conduct.
Automatism is a legal defence that refers to an act committed without conscious volition, that
is, action occurring in the absence of a wrongdoer’s will. [1] It precludes delictual liability. [1]
The conduct complained of would not satisfy the requirement of voluntariness. [1] In other
words, it could be argued that the wrongdoer acted mechanically. [1] If we apply these
principles to the facts supplied in the question, we can conclude that the CEO’s defence is
accordingly automatism, [1] namely lack of voluntariness, in that Mr Gummy was intoxicated
when he incited his dog to attack Ms Divine and therefore lacked the appropriate mental
capacity. [1]

The defence of automatism will not succeed if the wrongdoer intentionally created the situation
in which he acted involuntarily to harm another. [1] This is known as actio libera in causa. [1]
If a person deliberately uses drugs or consumes alcohol in order to commit an act that he
might otherwise not have had the courage to commit, the actio libera in causa rule provides
that he will be guilty of that crime, [1] even if his conduct was involuntary at the time of its
commission or lacked the appropriate mental element at the time of the conduct. [1] The
defence of automatism will also not succeed where the person knows that he is prone to
automatic conduct but acts negligently regarding that. [1] A wrongdoer would have foreseen
that harm may be caused to another in a state of automatism but failed to take necessary
precautions. [1] For instance, if a person knows that he might cause harm while sleepwalking
but fails to take preventive measures before he sleeps or drives a motor vehicle while knowing
that he might get an epileptic attack while driving. [1] If we apply these principles to the facts
given, we can conclude that, firstly, Mr Gummy was negligent [1] in respect of the automatic

2
state in which he ended up. He was fully aware that his drinking could lead to a violent crime.
[1] It was given that he has long been treated for alcoholism and has been punished multiple
times in the past for offences committed while drunk. [1] A reasonable person in his position
would have foreseen the possibility of harm arising and would have taken steps to prevent it.
[1] Secondly, he could even have had the intention in the form of dolus directus. [1] It is evident
that he objectively foresaw that his conduct was likely to cause injury, even the death of Ms
Divine, but proceeded to act regardless of the consequences of his conduct. [1] He was
blinded by his ego and directed his will towards achieving the prohibited result or towards
performing the prohibited act. [1] He thought out his attack, took his dog with him to work
despite the prohibited employment policy, pitched up at work drunk—another misconduct in
terms of employment rules—and severely wounded Ms Divine. A reliance on automatism
would fail in this case. [1] He intentionally placed himself in an automatic state. [1] His conduct
would be denoted as an actio libera in causa. [1] [Award one mark [1] each up to a
maximum of 3, for the names of the following cases, dealing with instances of automatism: S
v M; S v Eadie; Molefe v Mahaeng; Smit v Standard General Versekerings-maatskappy; S v
Johnson; R v Dhlamini; R v Du Plessis; R v Victor; R v Schoonwinkel; R v Mkize; S v Chretien;
S v Ramagaga; S v Erwin; S v Lombard; S v Crockart.]

For delictual liability, it is only an act of a human being [1] that is regarded as conduct.
However, if a person uses an animal as an instrument [1] it still constitutes a human act [1]
and therefore it is conduct for the purpose of delictual liability. [1] The conduct may be in the
form of an omission (a failure to act) or a commission (a positive, physical act or statement)
that is considered wrongful or negligent in nature. [1] According to the given facts, Mr
Gummy’s act satisfies all these requirements. [1] He used his dog as an instrument of the
attack on Ms Divine and therefore acted in terms of delictual liability. [1]

Based on the above, the court would not uphold the CEO’s defence. [1] The employer, in the
given facts, the bank, will likely face vicarious liability [1] for the act(s) of its employee, Mr
Gummy, if it can be shown that Mr Gummy’s conduct occurred within a valid working
relationship, [1] if the conduct occurred through a delict, [1] and if the act occurred within the
course and scope of employment. [1] The conduct of Mr Gummy satisfies all these
requirements. Therefore, the employer (the bank) will be delictually liable. [1]

[Maximum marks: 50]

Take note:

Assignment 3 is a quiz (MCQ).

• It will open on 17 September 2024 @ 08:00 AM.
• It is due on 25 September 2024 @ 18:00/06:00PM.
• It contributes towards your year mark. Therefore, its submission is vital!