Intent Updated - Copy (1)

Question 1

Why is intention important in the context of liability?

Answer 1

Certain forms of harm-causing conduct will only be wrongful if intended.

Negligence does not suffice.

Question 2

What types of conduct give rise to liability only if done intentionally?

Answer 2

• Incorrect decisions made during an adjudicative process
• Failures to comply with administrative justice in the award of a tender
• Interference with a contractual relationship
• Injurious falsehood
• Abuse of right
• Unlawful competition

Question 3

How does intention affect the determination of wrongfulness?

Answer 3

Intention increases the likelihood that certain conduct may be found wrongful.

Conduct may be prima facie wrongful if done intentionally, but lawful if done negligently.

Question 4

What is the relationship between intention and cost-benefit analysis?

Answer 4

The fact that conduct was performed intentionally excludes the cost-benefit analysis involved in determining negligence.

Question 5

What case illustrates that incorrect decisions made in good faith do not constitute a wrong?

Answer 5

Matthews v Young 1922 AD 492.

A judge making an incorrect decision in good faith does not incur Aquilian liability.

Question 6

What public considerations apply to adjudicators of disputes in tender awards?

Answer 6

Adjudicators are immune from damages claims for incorrect or negligent but honest decisions, unless made in bad faith or corrupt circumstances.

Question 7

What is required for interference in a contractual relationship to be considered wrongful?

Answer 7

Intention is required for wrongfulness, as accepted by the Constitutional Court in Country Cloud Trading CC v MEC, Department of Infrastructure Development.

Question 8

What constitutes injurious falsehood?

Answer 8

An untrue assertion made to a third party resulting in harm due to reliance on that assertion.

Example: Asserting a business is owned by a national of a country at war.

Question 9

What must a plaintiff show to establish liability for injurious falsehood?

Answer 9

Proof of intent to injure.

Question 10

What approach do Bredell and Van Zyl take regarding non-defamatory falsehoods?

Answer 10

Loss from a non-defamatory falsehood should be claimed using the Aquilian action.

Question 11

What is the definition of abuse of right in the context of delictual liability?

Answer 11

It is uncertain whether abuse of right can give rise to delictual liability, but it would likely require intention.

Question 12

What activities fall under unlawful competition?

Answer 12

• Injurious falsehoods
• Trading against statutory prohibitions
• Passing off goods
• Employment of physical assaults or intimidation
• Misappropriation of confidential information

Question 13

What are the requirements for passing off?

Answer 13

A representation that a business, merchandise, or service is associated with another, leading to public confusion.

Question 14

How does intention relate to misstatements causing pure economic loss?

Answer 14

Such misstatements may be prima facie wrongful if made intentionally but lawful if made negligently.

Question 15

What conditions can render conduct prima facie lawful yet wrongful?

Answer 15

• Conduct constituted a moral wrong
• The good achieved by recognizing it as a legal wrong outweighs the costs

Question 16

What does a negligence determination involve?

Answer 16

Weighing probable harm against the burden of taking precautions.

Question 17

What are the forms of intent recognized in law?

Answer 17

• Dolus directus (direct intention)
• Dolus indirectus (indirect intention)
• Dolus eventualis (constructive intention)

Question 18

What is dolus directus?

Answer 18

Desire to cause harm by conduct, either as an end in itself or as a means to an end.

Question 19

What distinguishes dolus indirectus from dolus eventualis?

Answer 19

Dolus indirectus involves foreseeing harm as an inevitable result, while dolus eventualis involves foreseeing harm as a possibility.

Question 20

What must the harm-doer know for intent to be established?

Answer 20

They must have consciousness of wrongfulness, meaning they know their conduct is contrary to law.

Question 21

What types of mistakes may negate intent?

Answer 21

Mistakes regarding relevant facts or the law.

Question 22

What case illustrates that a mistake of fact can negate consciousness of wrongfulness?

Answer 22

Kgaleng v Minister of Safety and Security 2001 (4) SA 854 (W).

A policeman mistakenly believed the deceased was armed, negating intent.

Question 23

What is the significance of the case Stoffberg v Elliott regarding consent?

Answer 23

It showed that a mistake of fact regarding consent does not negate the intent for assault.

Question 24

What conclusion can be drawn about consciousness of wrongfulness in relation to Aquilian liability?

Answer 24

There is authority stating it is a requirement, but opinions vary among scholars.

Question 25

What is a requirement for intent in Aquilian liability?

Answer 25

Consciousness of wrongfulness ## Footnote This requirement is supported by the majority of delict scholars.

Question 26

What approach does our law take towards intention?

Answer 26

Harm-orientated approach ## Footnote This contrasts with a loss-orientated or harm-and-loss orientated approach, as seen in negligence cases.

Question 27

In cases concerning bodily injury, what must be intended?

Answer 27

The intention to harm ## Footnote Example: In Mabaso v Felix, the defendant had to intend to fire shots, not specifically to cause loss.

Question 28

What is required for fraudulent misrepresentation?

Answer 28

The representor must have made a false representation with the intention of it being believed and acted upon ## Footnote Reference: Standard Bank of South Africa v Coetzee.

Question 29

In a delictual action based on fraudulent misrepresentation, is it necessary to prove the intent to cause loss?

Answer 29

No ## Footnote It suffices to show that the representor made a false representation the representee acted upon.

Question 30

What is the intention required in injurious falsehood?

Answer 30

Intention to invade contractual rights, not to cause loss.

Question 31

What is the intention required in passing off?

Answer 31

Intention to deceive the public by passing off one's goods as those of a rival.

Question 32

What is the harm entailed in cases of pure economic loss?

Answer 32

Impairment of one’s freedom of choice and action ## Footnote This is linked to autonomy.

Question 33

What approach does our law seem to take regarding the determination of intent?

Answer 33

Abstract approach ## Footnote This is evident in cases like Groenewald v Groenewald.

Question 34

In George NO v Minister of Law and Order, how did the court determine liability?

Answer 34

Based on whether the policemen had been negligent in respect of the innocent parties.

Question 35

In Groenewald v Groenewald, what was sufficient for holding the defendant liable?

Answer 35

Intention to cause harm to the plaintiff, regardless of the specific consequences.

Question 36

What does a relative approach to intention imply?

Answer 36

Intention is only recognized concerning the party the defendant intended to harm.

Question 37

What does an abstract approach to intention imply?

Answer 37

Intention is recognized concerning both the intended victim and any unintended victims.

Question 38

In cases of harm suffered, what does the law appear to take into account?

Answer 38

The intention to cause harm ## Footnote This is illustrated in the Groenewald case.