and could also use legal duty to determine in this case o Look in textbook

And could also use legal duty to determine in this

This preview shows page 7 - 10 out of 25 pages.

and could also use legal duty to determine in this case o Look in textbook ================================================================================= Wrongfulness: Subjective Rights Transmissibility of actions – Nkala judgment – for later – mining case, illness o Wrongfulness Omission
Image of page 7
Subjective rights infringed Bonis mores – justification? o Doctrine of Subjective Rights LS + LS Sense that you may use your right and others must not infringe. This one will be balanced out, right to enjoy their own property. These concern interests and Corresponding duties Test for wrongfulness LS + LO of right real (ownership) types - Tommy Mayer case originally – list is not closed real rights – tangible things personality rights – good name ect – defamation personal rights – rights to delivery or payment ,against a contracting party to performance. immaterial property rights = maybe….. personal immaterial property rights , hybrid of mind, personality – eg earning capacity, credit worthiness o Study guide - distinction between personality rights – interesting feature , cannot transfer these rights. Absolute relative rights – real rights? But almost no right is limited and restricted, excerisizing must take into consideration the rights of others. o Development of subjective rights Those existing -training for rights and situations that haven’t occurred yet o Infringement of subjective rights - clear to see, (test for wrongfulness) Legally reprehensible – wrongfulness criteria - balancing interest of LSs Case - must almost always look at m=bonis mores – prima facie wrongfulness Omission – concept of Legal Duty to Act - no general duty on anyone only if so determined by bonis mores. Prima facia- not wrongful. Fist off they are lawful until duty realised. How do we determine this – generalised approach to delict – 5 elements o Prior conduct – line of authority - ommissio per commissionem (know meaning Acting prima facie wrongfully, positive prior act, creates new source of danger Halliwell v Joburg City Council 1912 - prior conduct requirement, digging a hole in road without warning signs. Positive acts are prerequisite for liability for subsequent omission. Silva’s Fishing Corporation v Maweza - defendant owned a fishing fleet .prior positive act, boat engine stopped working, ladys husband drown, should they have saved him? Was it an omission . failure to take steps to rescue the boat. Only wrongufll if there was a legal duty for him to take such steps to resue these people. Case said yes there was a legal duty . following Halliwell case -majority said defendant
Image of page 8
created a dangerous situation – for financial benefit, consenting. Rendering subsequetnt omission wrongful. Isn’t ia always dangerous? - trying to find an omiision – minority said prior conduct was only one consideration, there are many, it was not essential to render it wrongful Regal – superslate – interdict – focus on jools (ewels) case Minister van polisie v Ewels vip Plaintiff assaulted by off duty policeman, assault by policeman and others didn’t intervene, in the police station,
Image of page 9
Image of page 10

You've reached the end of your free preview.

Want to read all 25 pages?

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

Stuck? We have tutors online 24/7 who can help you get unstuck.
A+ icon
Ask Expert Tutors You can ask You can ask You can ask (will expire )
Answers in as fast as 15 minutes