Dutton - Medical Malpractice in SA

Fault 111
take the form of conduct as a positive act (a commissio) negligently performed,
or conduct in the form of an omission (an omissio) in the sense of a failure to act
positively to prevent harm. Thus, an omission to take reasonable steps to prevent
foreseeable harm (as part of the test for negligence) should not be confused with
an omission as a species of conduct. Moreover, an omission can be performed
intentionally or negligently; and a positive act can be negligent. Negligence is
therefore not relevant only in respect of an omission. The application of these
principles, as we have seen, can have important consequences in respect of the
evidentiary burden. 166
6.30 The distinction between fault and unlawfulness
The distinction between unlawfulness and fault must always be kept clearly in
mind; it is deceptively easy to fall into the trap of confusing the two concepts. In
this regard, see the discussion at paragraph 4.5 above. 167
6.31 Ordinary and gross negligence
It is sometimes important to differentiate between ordinary and gross negligence.
Some statutes referred to the concept of ‘gross negligence’, as do certain
contractual exclusionary clauses. 168 Gross negligence requires a departure from
the standard of the reasonable person to such an extent that it may properly be
categorised as extreme; it must demonstrate, where there is found to be conscious
risk-taking, a complete obtuseness of mind or, where there is no conscious risktaking,
a total failure to take care. 169
The distinction between dolus eventualis and gross negligence is that in dolus
eventualis the question is whether the wrongdoer actually foresaw the possibility
of the consequence, with negligence the question is whether the consequence,
objectively stated, was reasonably foreseeable. For dolus eventualis, the defender
‘consents’ to the consequence which is foreseen as a possibility, he ‘reconciles
himself’ to it, he ‘takes it into the bargain.’ 170
166
But not on the onus, in its true and original sense of being the duty of finally satisfying the
court that a litigant in entitled to succeed on the claim or defence: Pillay v Krishna 1946 AD
946 at 952; South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3)
SA 534 (A) at 548.
167
Loureiro and Others v Imvula Quality Protection (Pty) Limited 2014 (3) SA 394 (CC). The
Constitutional Court considered the element of negligence, and cautioned against conflating
the enquiries into wrongfulness and negligence (at 53); Country Cloud Trading CC v MEC
Department of Infrastructure and Development 2014 (2) SA 214 (SCA).
168
See Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA).
169
MV Stella Tingas Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas 2003 (2) SA 473 (SCA)
at 480–481.
170
S v Ngubane 1985 (3) SA 677 (A) at 685; Rudolph v Minister of Safety and Security 2009 (5) SA 94
(SCA) 100.