Policy considerations underlying a finding of wrongfulness in delictual cases.

An Article by Advocate Ivor Heyman (Protea Group), 26 June 2019

A recent judgment by Unterhalter J in the South Gauteng High Court has highlighted the difficulties of deciding whether a defendant’s behaviour is wrongful, and therefore makes out a claim for Aquilian liability.

In Van der Bijl and Another v Featherbrooke Estate Home Owners’ Association (NPC) 2019 (1) SA 642 (GJ), Mr and Mrs Van der Bijl brought an action for damages against the homeowners association and the security company of their residential estate after they were robbed in their home. They argued that the defendants wrongfully and in breach of their duty of care failed to take measures necessary to ensure the safety of the residents of the estate.


In coming to the conclusion that there was no duty resting on the association to protect the plaintiffs from the harm suffered, Unterhalter J examined the possible bases upon which a finding of liability could be made. He used this reasoning:

  1. Our law of delict once proceeded from the distinction that conduct that caused physical, emotional and reputational injury to a person or injury to property was presumed to be wrongful, whereas omissions and actions for pure economic loss were not necessarily wrongful.
  • Following decisions in Minister van Polisie v Ewels 1975 (3) SA 590 (A) and Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A), our law changed and omissions as well as actions for pure economic loss were considered actionable if the court found that the defendant owed a legal duty to the plaintiff. A legal duty would exist if called for by the so-called legal convictions of the community.
  • Subsequent courts wrestled with when a legal duty arises. In Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A), it was said that the court is required to exercise a value judgment embracing all relevant facts and considerations of policy.

In Minister of Law and Order v Kadir 1995 (1) SA 303 (A), the court said that to determine whether a legal duty exists, a court must take into account not merely the interests of the parties inter se, but also the conflicting interests of the community. These need to be carefully weighed and a balance found between what the Court conceives to be society’s notions of what justice demands.


In Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as Amicus Curiae) 2003 (1) SA 389 (SCA) the court stated that whether a legal duty exists in a particular case is a conclusion of law depending on a consideration of all the circumstances of the case and on the interplay of the many factors which have to be considered.

  • Unfortunately, according to Unterhalter J, these cases provide little substantive guidance as to what is wrongful in a particular case, and a set of parameters are needed to assist a court to determine whether particular conduct was wrongful. 

According to (now retired) Professor Annel van Aswegen, policy considerations such as fairness, honesty and the legal convictions of the community, fill gaps in the law. They come in handy where there are glaring inconsistencies between settled legal rules and an existing set of facts, with the result that settled law is inadequate to reach a decision that is compatible with the current social reality. See “Policy Considerations in the Law of Delict” 1993 THRHR 171. Interestingly, Professor van Aswegen takes the view that the question of liability for pure economic loss is best addressed under the element of legal causation rather than wrongfulness, but that is beyond the scope of this article.


If we accept the premise that policy considerations need to be flexible to fill gaps in the law, this makes it very difficult to advise clients on their prospects of success in a delictual matter because it is virtually impossible to predict what policy considerations are going to appeal to the judge in a client’s particular situation.

Perhaps the most helpful analysis of the policy considerations underlying wrongfulness is provided by Professor Anton Fagan. See “Further Reflections on Wrongfulness in the Law of Delict” (2018) 135 SALJ 18. After analysing dozens of cases in which our courts found that behaviour was wrongful, Professor Fagan concludes that courts are most likely to find that policy considerations favour a wrongfulness finding when two circumstances are present:

  • the negligent harm-causing conduct gives rise to a moral duty to repair the harm by the wrongdoer, and
  • the good achieved by imposing a legal duty to repair the wrong outweighs the cost in doing so.

It is the second circumstance that Professor Fagan mentions that warrants closer scrutiny. It appears that the real question underlying a policy decision that behaviour was wrongful is who should bear the loss for the harm-causing conduct. If the court believes that the wrongdoer is in a better position to bear the loss (e.g the court found that the defendant bank in Indac Electronics was in a more favourable economic position than the plaintiff, and was in a position to insure against the loss) it is more likely to find that the conduct was wrongful.


Perhaps the issue of which party was in a better position to bear the loss in Van der Bijl was in Unterhalter J’s mind when he reached the conclusion that neighbours residing in an estate did not have a legal duty to protect one another, whether acting in a private capacity or through an association. Unterhalter J found that the security company owed a duty to protect those persons it was contracted by the association to protect. However, there was no evidence that imposing liability on all homeowners for the protection of each other is a more effective way of achieving security than requiring every homeowner to provide their own security or to remain liable for any loss.

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