CAUSATIONIn order for a delict to be punishable, there must be a link between the initial conduct and the consequences that arise. Put in other words, in order for there to be liability there needs to be a causal nexusbetween the act and the consequence. An enquiry into causation determines how far a person should be liable for the consequences of their actions.FACTUALCAUSATIONTHECONDICTIOSINEQUANONTEST(THE“BUTFOR” TEST)But for the defendants conduct, would the plaintiff have suffered loss?The test allows for very wide liability.The test determines whether the defendant was the factual cause of the consequence.If the defendants acts cannot be notionally eliminated without the consequence disappearing, then the defendant is the factual cause of the damage.OMISSIONBut for the defendant’s failure to act, would the plaintiff have suffered loss?State v SkosanaS suffered an accident while drunk, and complained of abdomen pain while in police custody.The police negligently delayed taking him to the hospital and he died as a result.The court heldThat had S been taken to the hospital earlier (even half an hour), he would have lived.The police were the factual cause of S’s deathLEGALCAUSATIONFactual causation leaves the scope for liability too wide, and is thus liability is limited, on policy considerations, by legal causation (S v Mokgethi).
1. THEFLEXIBLEAPPROACHThe approach is the most important one, and is the over-arching test for legal causation, whilethe other tests are merely directory.The test, determined in S v Mokgethi(a criminal law case), states that there are so many different theories in South Africa, that the courts can’t just use one criterion. Court must consider a variety of factors.Standard Charter Bank of Canada v NedpermThe Appellate Division confirmed the Mokgethi ratio in a civil caseIt was held that the test for legal causation must be a flexible one in which the court considers reasonable foreseeablity, directness, the absence or presence of a novus actus interveniens, legal policy, reasonability, fairness and justice.The case essentially states that in an enquiry for legal causation the court must use all the tests, and still consider which ones lead to a reasonable and just solution.