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being a statute. If the true sense of those judgments is a more restricted one, viz. that an omission unconnected with prior conduct is always to be regarded as a mere omission, i.e. as a failure to do what the person concerned is not bound to do, I must, with great deference, disagree with it. The Roman law, as also the Roman-Dutch law, recognises the principle that, generally speaking, no one is bound to mind the business of another, even where he can, with no danger or expense to himself, avert serious harm from the other, and that no liability is incurred by refraining from doing so, even if the omission should violate a moral duty But there is a variety of circumstances, some of them unconnected with prior conduct, which impose the duty to act in order to avoid reasonably foreseeable loss to another. The circumstances which will give rise to such a duty may differ according to the conceptions prevailing in a particular community at a given time.
208:, by the manner of his acceptance of the warning in Mostert's absence, had created a potentially dangerous position, and that thereafter there was a duty on him to pass on the warning to Mostert and his co-employees who were engaged on the same project, and who might reasonably be unaware of the danger; and that his failure to do so constituted negligence. It was the accused's negligence, accordingly, which had caused the death of the deceased: "It accordingly follows, in my opinion, that the conviction and sentence were in accordance with justice and that they should both be confirmed by this Court."
117:, an important case in South African criminal law, heard on July 12, 1967, the accused had been warned of the danger of operating a crane under a live electric wire, but had failed to pass on the warning to his co-employees. This omission, constituting negligence, led to the death of one of them. He was convicted of culpable homicide.
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of Roman law—the average prudent person. Every man has a right not to be injured in his person or property by the negligence of another—and that involves a duty on each to exercise due and reasonable care. The question whether in any given situation a reasonable man could have foreseen the likelihood
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From these remarks it may fairly be gathered that an omission does not entail delictual liability where there is no legal duty to act, that generally speaking such a duty will arise from a prior act or from prior conduct, but that it could also arise from some other source, one such possible source
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Russell, the accused, was charged before a magistrate of culpable homicide arising out of the electrocution of Aaron
Masenyetsi, a black male employee at Ngagane Railway Station. It appeared from the evidence that on June 23, 1966, the accused, a white male carpenter employed in the Department of
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Overhead was an electric wire. Whilst
Mostert and his black assistants, including the deceased, were not present, the shunter, in accordance with his duty to warn all workmen present, had informed the accused that the current was about to be switched on, and that he would be advised when it was
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Now negligence can never be disentangled from the facts; but its existence is best ascertained by applying to the facts of each case the standard of conduct which the law requires. And that standard is the degree of care and skill which a reasonable man would exercise under the
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of harm and governed his conduct accordingly is one to be decided in each case upon a consideration of all the circumstances. Once it is clear that the danger would have been foreseen and guarded against by the
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Water
Affairs, was assisting one Mostert, the crane operator in charge of loading pipes onto a lorry from a crane fitted on the back thereof, also an employee of the Department.
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switched off, so that they could proceed with the loading. The deceased omitted to inform
Mostert thereof on his return, and the loading continued.
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191:—the failure to observe that degree of care which a reasonable man would have observed. I use the term reasonable man to denote the
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It has repeatedly been laid down in this Court that accountability for unintentioned injury depends upon
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Van
Heerden J found, on the basis of these and other authorities, that the accused
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The top of the crane touched the wire and the deceased was electrocuted and died.
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In a review of a conviction of culpable homicide, Van
Heerden J cited
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Criminal law, Culpable homicide, Omission, Negligence
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325:South African criminal case law
180:Cape Town Municipality v Paine
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330:KwaZulu-Natal Division cases
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218:South African criminal law
82:Fannin J and Van Heerden J
315:1967 in South African law
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198:diligens paterfamilias
193:diligens paterfamilias
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249:1957 (2) SA 256 (A).
232:1967 (3) SA 739 (N).
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189:culpa
121:Facts
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298:216.
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271:41.
177:In
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111:In
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269:AD
67:SA
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