The Supreme Court of Appeal allowed the appeal and held that wrongfulness is not presumed. Regard must be had to considerations of public and legal policy. It depends on a legal duty and whether or not it would be reasonable to impose delictual liability for loss on a specific omission.
The South African Hang and Paragliding Association v Bewick (1010/2013) [2015] ZASCA 34; [2015] 2 All SA 581; 2015 (3) SA 449 (SCA) (25 March 2015) per Brand JA [Mhlantla, Leach, Saldulker et Mbha JJA concurring]
SCA Summary: Delict – respondent injured in paragliding accident while transported as passenger for reward – issue whether tandem paragliding for reward illegal – further issue, whether in that event failure by appellants to prevent the illegal activity constituted wrongfulness in delict – further issue whether appellants’ omission was causally connected to harm suffered by respondent.
See also
City of Cape Town v Rhoode (A314/2017) [2018] ZAWCHC 49 (17 April 2018)
BOZALEK J
“[1] This is an appeal with the leave of the Court a quo against an order that the appellant, the City of Cape Town, is liable for 60% of such damages as the respondent may prove arising out of injuries which he sustained on 7 January 2011 when he used a water slide owned and operated by the appellant at the Mnandi Resort, Mitchells Plain. After descending down the water slide head first the respondent struck the bottom of the pool with the crown of his head sustaining a spinal injury which rendered him a quadriplegic”.