On 27 June 2009 a married man and father of three young children died tragically when he slipped on ice and fell to his death over a sheer snow covered precipice at Conical Peak, one of the highest mountain peaks in the Western Cape.  The Supreme Court of Appeal overturned a judgment of the High Court and decided that his wife and three children were entitled to be compensated for their loss of financial support.  Careful consideration was again given to the element of wrongfulness, negligence and causation.  This judgment is important for managers because it draws attention to the dangers and risks inherent in doing business and the necessary safety measures that need to be in place.

Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015) per Brand JA (Cachalia, Petse JJA, Fourie et Mayat AJJA concurring):


[19]      It should be readily apparent that if the test for wrongfulness is whether it would be reasonable to have expected the defendant to take positive measures, while the test for negligence is whether the reasonable person would have taken such positive measures, confusion between the two elements is almost inevitable.  It would obviously be reasonable to expect of the defendant to do what the reasonable person would have done.  The result is that conduct which is found to be negligent would inevitably also be wrongful and visa versa.  The question then arising was the very title of an academic article by Prof Johan Neethling, namely ‘The Conflation of Wrongfulness and Negligence: Is it always such a bad thing for the law of delict?’ (2006) 123 SALJ 204.  To which our former colleague, R W Nugent, responded extra-judicially in an article entitled ‘Yes, it is always a bad thing for the law: A Reply to Professor Neethling’ (2006) 123 SALJ 557.

I find myself in respectful agreement with this answer by our former colleague.  My reason, broadly speaking, is that this confusion may lead to the element of wrongfulness being completely ignored.  If negligence – whether properly understood or under the guise of wrongfulness – is found to be absent, the confusion would make no difference to the result. In either event, liability will not ensue.

By way of illustration a comparison can be made between Administrateur Transvaal v Van der Merwe 1994 (4) SA 347 (A) on the one hand, and Gouda Boerdery BK v Transnet 2005 (5) SA 490 (SCA), on the other.  In these two cases, the defendant was held not liable in circumstances which were virtually the same.  This, despite the fact that the issue was considered in Van der Merwe – wrongly in my view – as one pertaining to wrongfulness whereas in Gouda Boerdery BK it was regarded – rightly in my view – as one of negligence.  But where the confusion will indeed make a difference is where negligence – properly understood or under the guise of wrongfulness – is found to have been established.  In that event it will lead to the imposition of liability without the requirement of wrongfulness – properly understood – being considered at all.

The safety valve imposed by the requirement of wrongfulness – as described by the Constitutional Court in Country Cloud Trading CC – will simply be discarded.  If that were to have happened, for instance in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA [2005] ZASCA 73;2006 (1) SA 461 (SCA) and in Minister of Law and Order v Kadir 1995 (1) SA 303 (A), the defendants in those cases would have been held liable, despite the ultimate conclusion arrived at by this court in those cases that, for reasons of public and legal policy, it would not be reasonable to impose delictual liability on them.