With the aid of case law, discuss the delictual liability for an omission

Answer 1

In South African law, a person can be held liable for a delictual claim based on an omission if certain conditions are met. One of the key elements that must be established is that there was a legal duty on the part of the defendant to act in order to prevent harm or injury to the plaintiff. This duty can arise from various sources, such as a contractual obligation, a statutory duty, or a special relationship between the parties.

One of the landmark cases that dealt with delictual liability for an omission is the case of K v Minister of Safety and Security 2005 (6) SA 419 (CC). In this case, the Constitutional Court held that the police could be held liable for failing to prevent the of a woman who had reported threats by her ex-boyfriend. The court found that the police had a duty to act based on the special relationship that existed between the woman and the police, as well as the fact that the threats had been reported to them.

Another important case on this issue is the case of Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC). In this case, the Constitutional Court held that the police could be held liable for failing to protect a woman from being by a known who had threatened her. The court found that the police had a duty to act based on the information they had about the threats, and that they had failed to take reasonable steps to prevent the harm from occurring.

These cases illustrate that in certain circumstances, a person can be held liable for an omission if they had a duty to act and failed to do so, resulting in harm or injury to another person. It is important to consider the specific facts and circumstances of each case in order to determine whether liability for an omission can be established.