Dutton - Medical Malpractice in SA

Unlawfulness (Wrongfulness) 37
wrongfulness is whether “the negligent omission occurred in circumstances that the
law regards as sufficient to give rise to a legal duty to avoid negligently causing harm”.
Otherwise stated, if we talk about a “legal duty” in the present context, we mean no
more and no less than a duty not to be negligent. Questions as to whether the defendant
could reasonably be expected to have taken any positive measures at all and, if so, what
positive measures should reasonably have been taken, form part of the enquiry into
negligence. As was emphasized by Holmes JA in Kruger v Coetzee, these questions form
part of the requirement in (a)(ii) of the test formulated in that case.’ 43
4.6 The general criterion of reasonableness 44
For many years, the standard academic view of the nature of unlawfulness in
the South African law of delict was stated as: a harm-causing act was wrongful
if, and only if, it was unreasonable — that being judged from an ex post facto
perspective. 45 In recent years, there has been a reassessment of the accuracy of
the proposition. 46 This has led to academic criticism of this formulation of the
concept of unlawfulness, and clarification by our courts in decisions such as Sea
Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage 47 and Minister of Safety and
Security v Van Duivenboden. 48 It has been said that, in cases which followed the
standard academic formulation of unlawfulness, ‘[w]hat was obviously referred
to was the policy consideration whether or not it would be reasonable to impose
liability on the defendant.’ 49
That may be so but it is, with respect, difficult to see why the notion of ‘reasonableness’
is, potentially confusingly, elevated to a position of pre-eminence
amongst the considerations which the courts may take into account in assessing
legal policy when considering the unlawfulness of particular conduct. The
concept of the legal convictions of the community is broad enough to encompass
43
F D J Brand ‘Reflections on wrongfulness in the law of delict’, 2007 SALJ 76 at [9] to [10].
44
For an influential criticism of the previous standard academic view, see esp Anton Fagan
‘Rethinking Wrongfulness in the Law of Delict’ 2005 SALJ 90 at 107–108. Differing formulations
of the test have been used, and it has been held that the unlawfulness of harm-causing
conduct turns on ‘a general criterion of unreasonableness’, ‘considerations of policy’ and on
‘the legal convictions of the community’; National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)
at 1204 D–E; Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) at 1056E–1057G;
SM Goldstein and Co (Pty) Ltd v Cathkin Park Hotel (Pty) Ltd 2000 (4) SA 1019 (SCA) at 1024
F–G; Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) at 395I–396B; Premier,
Western Cape v Faircape Property Developers (Pty) Ltd 2003 (6) SA 13 (SCA) at 32 B–C; Minister
of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at 442 C and 444 C; F D J Brand
‘Reflections on wrongfulness in the law of delict’, 2007 SALJ 76; Neethling ‘The conflation of
wrongfulness and negligence: is it always such a bad thing for the law of delict?’ 2006 SALJ
204; RW Nugent ‘Yes, it is always a bad thing for the law: A reply to Professor Neethling’ 2006
SALJ 557; Andrew Paizes ‘Making sense of wrongfulness’ 2008 SALJ 371.
45
Fagan ‘Rethinking Wrongfulness in the Law of Delict’ 2005 SALJ 90 at 91. This view on occasion
found its way into our case law. See, e g: Government of the Republic of South Africa v Basdeo
1996 (1) SA 355 (A) at 367; Gouda Boerdery Bk v Transnet 2005 (5) SA 490 (SCA).
46
See esp Fagan ‘Rethinking Wrongfulness in the Law of Delict’ 2005 SALJ 90.
47
2000 (1) SA 827 (SCA).
48
2002 (6) SA 431 (SCA).
49
F D J Brand ‘Reflections on wrongfulness in the law of delict’, 2007 SALJ 76 at [9].